Police Investigating Police – Final Public Report

Provincial Legislatures and Committees

Interest within provincial legislatures on the subject of police and issues surrounding police complaints was especially high in British Columbia, Saskatchewan and Manitoba. In these three provinces, over the course of the past number of years, specific incidents have led to an increased public interest in the issue of police conduct. Some highlights of issues of relevance are outlined below.

British Columbia

In British Columbia, there have been a number of studies into the police complaints process. On August 9, 2002, the Special Committee to Review the Police Complaint Process released its Second Report.^{Footnote 9} Members of the committee heard two general themes throughout the testimony: one, the police had to buy into the complaints and oversight system for it to work effectively; second, there was concern from some witnesses that the complaint process was "a bit like asking the fox to guard the henhouse."

In August 2005, the B.C. Government appointed B.C. Appeal Court Judge Josiah Wood to review the police complaints system in the province. Justice Wood presented the Report on the Review of the Police Complaint Process in British Columbia in February 2007.^{Footnote 10} One of Judge Wood's key findings suggested that the oversight powers of B.C.'s Police Complaints Commissioner (PCC) need to be "significantly enhanced if the current model of civilian oversight is to be effective." Judge Wood further suggested that more active involvement by the PCC in police investigations is a necessity.

The report contained 91 recommendations to improve the system. Among them, Judge Wood emphasized that the PCC be notified of any in-custody and police related death and that all in-custody and police related deaths be investigated by an external police agency. In February 2008, the B.C. government announced changes to the province's Police Act to implement the report's recommendations.

On March 4, 2009 the B.C. government introduced amendments to the Police Act: Bill 6 – 2009 Police (Misconduct, Complaints, Investigations, Discipline and Proceedings) Amendment Act, 2009 and Bill 7  – 2009 Police (Police Complaint Commissioner) Amendment Act, 2009. B.C. Solicitor General John van Dongen stated that the proposed legislative changes address "virtually all" of Judge Wood's recommendations. NDP public safety critic Mike Farnworth emphasized that the changes are insufficient because the RCMP, which constitutes the majority of patrol outside greater Vancouver and southern Vancouver Island, remains excluded from the Act's jurisdiction.

Saskatchewan

In Saskatchewan, of significant relevance was the case of Neil Stonechild, who, in 1990, was found dead in a field outside of Saskatoon after being last seen in police custody. On February 20, 2003, the Government of Saskatchewan appointed Mr. Justice D.H. Wright to conduct an inquiry into the circumstances surrounding the death of Mr. Stonechild and the pursuant police investigation.

The Commission of Inquiry Into Matters Relating to the Death of Neil Stonechild was released on October 26, 2004. The inquiry found that the police investigation was "superficial at best" and concluded prematurely, laden with "glaring deficiencies" which "go beyond incompetence or neglect." Justice Wright noted that local police officers have an "overly defensive attitude" when it comes to complaints against their own and lamented the wide gulf between the Aboriginal and non-Aboriginal population in the province, including a long-standing distrust of non-Aboriginal institutions (such as the police). Wright recommended, among others, a review and improvement of the procedures that deal with complaints from the public about police misconduct.

Judge Wright's recommendations led to several amendments to Saskatchewan's Police Act.^{Footnote 11} As a result of consultations between local police services and First Nations groups, the Public Complaints Commission was created as a new police oversight body on April 1, 2006. To ensure that the new oversight body was representative of Saskatchewan's diverse population, a provision was added dictating that one of the members of the board be of Métis origin, one a person of the First Nations ancestry, and one must be a lawyer. In addition, an amendment to the Act required that in a case of serious injury or death to a person in police custody or as a result of police actions, an independent observer from another police force or RCMP detachment be appointed. On April 3, 2006, Saskatchewan Justice Minister Frank Quennell emphasized that the new amendments are crucial to the integrity of the province's justice system.

Manitoba

Interest within the Manitoban legislature was focussed on issues such as street crime and police staffing levels. Not unlike the House of Commons, legislative committees have shown little interest in the issue of police investigating police. Circumstances surrounding a death of a civilian at the hands of a police officer brought the issue onto the forefront. On February 25, 2005, an off-duty East St. Paul Police officer, Derek Harvey-Zenk, hit and killed Crystal Taman in an automobile accident. Constable Harvey-Zenk had fallen asleep following a night of drinking with his colleagues. The crash was initially investigated by the East St. Paul Police-the officer's own police unit-and the Winnipeg Police Service Professional Standards Unit. The officer was sentenced to two years of house arrest. Public outcry followed the officer's sentence.

The issue was raised in the Manitoba legislature. On October 30, 2007, the Leader of the Opposition, Hugh McFadyen, observed on how such tragedies shake the public confidence in Manitoba's justice system. In response, Premier Gary Doer stated that a review of the independent prosecutor's office and decisions made in the Taman case would be investigated by a former Queen's Bench judge, former Justice Ruth Krindle. Notwithstanding these reviews, on December 5, 2007, an inquiry, headed by retired Ontario Superior Court Judge, the Honourable Roger Salhany, was called to review the handling of the case by the Manitoba police officers.^{Footnote 12}

Judge Salhany's report entitled Taman Inquiry into the Investigation and Prosecution of Derek Harvey-Zenk was released October 6, 2008, and emphasized the poor quality of the investigation by the East St. Paul police. According to Judge Salhany, the investigation was: conducted in bad faith; "riddled by incompetence;" a cover-up; an example of "abysmal" note taking; and overall, a "misleading" investigation of Ms. Taman's death. In particular, Judge Salhany paid special attention to two police officers that handled the investigation who gave "untrustworthy and inconsistent" testimony.

Salhany pointed out the partial nature of (criminal) investigations conducted by police officers into the conduct of their own and recommended, among others, the creation of a separate provincial oversight body, independent of the police service, to conduct criminal investigations into the conduct of Manitoba police officers. Manitoba's government pledged to abide by all 14 of the report's recommendations. The creation of new oversight body is scheduled for 2009, at which time the Doer government intends to introduce changes to the provincial Police Act.^{Footnote 13}

Additional relevant reports

Four additional high profile reports are of relevance to the PIP issue. Justice O'Connor's A New Review Mechanism for the RCMP's National Security Activities, David Brown's Rebuilding the Trust – Task Force on Governance and Culture Change in the RCMP, Ontario Ombudsman's Oversight Unseen: Investigation into the Special Investigations Unit's Operational Effectiveness, as well as Judge William Davies' Alone and Cold: Inquiry into the Death of Frank Paul were actively considered by the CPC in the development of its own recommended model for the RCMP.^{Footnote 14}

Research is sparse

A key finding of the literature review is the lack of direct research on the actual operations and activities of the various PIP models. There is very little empirically-based knowledge on PIP and most research to date is conducted at a general, descriptive level.

Specifically,

• There are almost no case studies of actual investigations of the various kinds of models or processes that would allow an analysis leading to the establishment of good practice;
• There is no research to clarify the necessary investigative skills required for civilian investigations;
• There is little detailed research analyzing the precise role of police culture in the investigations of complaints against the police;
• There has been little attempt to examine new models of police management and technologies employed to manage and document police activity and behaviour;
• Little research examines the role of police associations and collective bargaining agreements in inhibiting or assisting PIP or alternative investigations; and
• There is little knowledge about how various elements or aspects of PIP or its alternatives can contribute to, or undermine, the public legitimacy of the civilian oversight process.

This absence of direct research on the issue of police investigating police is an important finding because it demonstrates the need for further research and analysis in this regard. This report hopes to help bridge the current research gap on this issue by assessing academic, policy, alternate models and the real handling of police investigations.

General themes emerging in the literature

While overall research in this area is sparse, a number of general themes relevant to the issue of police investigating police are worth highlighting. The first theme questions whether the police can in fact conduct fair and impartial investigations of themselves. Some criticism focuses on the fact that police organizations are insular and protective by nature (with a distinctive and powerful organizational culture) which protects police from external criticism and review by defending and rationalizing police misconduct. Although it is acknowledged that the police may in fact conduct fair and impartial investigations, the public perception or suspicion that they cannot often prevails-the perception of a lack of impartiality or accountability can outweigh the reality in most instances.

The second theme relates to the ability of civilians to conduct effective investigations. While it is generally accepted that civilian investigations may appear more impartial given their very distance from the police culture (and work environment), the argument is made that civilians may lack a sufficient understanding of police work to conduct a full and thorough criminal investigation. The lack of legitimacy afforded to civilian investigators due to reduced levels of cooperation and limited access to necessary information by police can therefore hinder a civilian investigator's ability to undertake effective investigations.

Another trend focuses on the role police and the police culture can play in their own reform. The very nature of the police occupation involves protective and insular behaviours which may be beneficial for police work and can duly hinder an openness to serious reform and progressive development. There is a growing consensus, however, that a more open and accountable process is inevitable, and police officers are aware of the need for change. The solution, therefore, lies in an external review process that understands and addresses legitimate police concerns. There is a need to find ways to involve police in the process of review, investigation and reform. Essentially, to ensure a good working relationship with the police, they must meaningfully participate in the process of self-governance, thereby allowing them to become part of the solution.

And finally, at issue is whether the use of active or retired police officers compromises the independence and integrity of the investigation. It is argued that deploying active (seconded) police officers can ensure the investigative skill set and experience are present, but also places the investigation at risk for being impartial and constrained by shared occupational values and perspective that may affect the findings. Retired police officers may also possess the necessary expertise and since they do not have the same level of identification with the pressures of operational police culture, they may have developed more professional and independent views regarding the police function (especially in the case of senior level investigators in command positions).

In conclusion, the review of the literature revealed a consensus that traditional models of PIP are no longer defensible, either as an effective model for addressing public complaints or a method that satisfies public demands for accountability. Opinions differ, however, as to which civilian alternative for oversight is the most adequate. Civilian review models with limited review mandates are not the solution because of the realistic need for police cooperation and involvement. PIP review models should not be seen as undermining police responsibility and ability to govern their own behaviour. Many advocate, therefore, a promotion of hybrid police/civilian investigative and review models that recognize a legitimate but limited role for the police in the process, combined with a vigorous civilian oversight and investigation. It appears that the future role of the police in the investigative and review processes lies in encouraging more effective internal self-governance and accountability while developing more powerful but collaborative civilian oversight and investigative models.

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

1 (a) RCMP Act – s. 37 Conduct

Section 37 of the RCMP Act outlines eight guidelines for appropriate behaviour expected of RCMP members at all times. This section legislates the imperative need for members, as representatives of the RCMP, to act respectfully, dutifully and free from conflict of interest:

• 37. It is incumbent on every member
  • (a) to respect the rights of all persons;
  • (b) to maintain the integrity of the law, law enforcement and the administration of justice;
  • (c) to perform the member's duties promptly, impartially and diligently, in accordance with the law and without abusing the member's authority;
  • (d) to avoid any actual, apparent or potential conflict of interests;
  • (e) to ensure that any improper or unlawful conduct of any members is not concealed or permitted to continue;
  • (f) to be incorruptible, never accepting or seeking special privilege in the performance of the member's duties or otherwise placing the member under any obligation that may prejudice the proper performance of the member's duties;
  • (g) to act at all times in a courteous, respectful and honourable manner; and
  • (h) to maintain the honour of the Force and its principles and purposes.

1(b) Commissioner's Standing Orders

The Royal RCMP Act defines the "Commissioner's Standing Orders", in subsection 2(2) as:

The rules made by the Commissioner under any provision of this Act empowering the Commissioner to make rules shall be known as Commissioner's standing orders.

And while there are a broad number of Commissioner's Standing Orders outlined in the RCMP's Administrative Manual, three specific Standing Orders (Public Complaints) are applicable to the PIP context:

• Section 9: A member shall not investigate a complaint where that member may be in a conflict of interest situation
  • It is important to note that the term "conflict of interest" is not defined further in the Orders.
• Subsection I.2.b: If, as a result of an investigation, a member is believed to have committed a statutory offence: 1. it is within RCMP primary jurisdiction, take the same action as you would for any other person.
  • The Commissioner's Standing Orders 1.2.b 1. reference: "take the same action as you would for any other person" is consistent with the RCMP's current national Investigation Guidelines (outlined further later in this chapter).
• Subsection I.3.a: When you [Immediate Officer/Officer in Charge] are informed of a serious complaint against a member, including bribery, corruption or similar offence, inform the Criminal Operations Officers (CROPS), and follow division directives.
  • While most divisions do have some form of directive to Commanders and/or investigators to refer, report, or consult with Criminal Operations Officers (CROPS) under specific circumstances, the terminology directing the process varies by division and is often vague in nature (e.g. some divisions require directing the matter to Criminal Operations Officers (CROPS) "by the most appropriate means," others state by "direct means" and timing ranges by from "immediately" to "as soon as practical").

1 (c) Provincial Police Acts^{Footnote 23}

Only three provincial police acts specifically address the role of an independent oversight body in the handling of police investigations: (1) Alberta, (2) Saskatchewan and (3) Ontario. It is important to note that while chapter 5 of this report provides greater detail on the mandate, features and functioning of these domestic oversight bodies in Canada, this section will remain strictly focused on defining the legislative basis for each.

In the case of Alberta, section 46.1 of the Police Act established the province's integrated unit to investigate allegations of serious criminal conduct and incidents of serious injury or death resulting from the actions of a police officer.

• Paragraph 46.1(2)d of the Act establishes an "integrated investigative unit to conduct an investigation into the incident or complaint, which may include taking over an ongoing investigation at any stage" which the Minister of Justice and Attorney General may direct to do so in case of incidents involving serious injury or death (or a complaint thereof) of a person that may have resulted from the actions of a police officer, or "any matter of a serious or sensitive nature" regarding the actions of a police officer.
• Subsection 46.2(1) states that the Minister "may [...] authorize it to act as another police service for the purposes of conducting an investigation under section 46.1."
• According to subsection 46.2(3), the head of this unit "is deemed to be a chief of police."
• The Alberta Serious Incident Response Team (ASIRT) was the model proposed for such a unit. ASIRT is comprised of civilian, RCMP and municipal police personnel who are directed by the province's Director of Law Enforcement to conduct investigations in cases of serious injury or death.

In Saskatchewan, the 2005 amendments introduced to the Police Act, 1990 establish the Public Complaints Commission (PCC).

• Section 45(1) of the Act specifies that in cases of a complaint regarding the actions of a police officer, the PCC, in consultation with the chief of police, "shall cause an investigation into the complaint to be conducted [...] as soon as practicable."
• It applies to all public complaints, including to potential offences "pursuant to an Act or an Act of the Parliament of Canada" (section 45(2)).
• Section 45(3) outlines the possible course of action for the PCC in the case of a complaint. The PCC may choose to investigate the complaint itself (3a), refer it back to the police service subject of the complaint (3b), appoint an observer who shall monitor the police investigation (3c), or refer it to another police force (3d).
• According to section 45(6) the PCC has the authority to assume responsibility of the police investigation at any point it feels necessary, at which time the police service in question must stop its own investigation and provide all required assistance to the PCC.
• Subsection 91.1(1) dictates that in cases of serious injury or death, the RCMP providing policing services within a municipality must request that the Deputy Minister of Justice appoint an observer "from another police service or detachment of the RCMP" to oversee the investigation. This observer shall be given "full access" to the investigation and report on all aspects of the investigation.
• In the case of investigations without prior complaint, police investigate the incident on their own (with the exception of investigations that "directly relate" to a member of the public, in which case the police chief must advise the PCC as soon as practicable. At that point, the PCC takes charge over the matter).

In Ontario, the Police Services Act (section 113) and the Regulation 673/98, Conduct and Duties of Police Officers Respecting Investigations by the Special Investigations Unit, outline the procedures to follow in cases of criminal offences committed by the province's police officers. Section 113 of the Act dictates that an independent unit shall investigate the circumstances of serious injuries, deaths and allegations of sexual assault that may have resulted from the actions of police officers.

• Section 113(5) of the Act states that the director of the Special Investigations Unit (SIU) "may, on his or her own initiative, and shall, at the request of the Solicitor General or Attorney General," conduct investigations in cases of serious injuries and deaths that may have occurred as a result of criminal offences committed by police officers. Police officers have a duty to cooperate "fully" with the unit (section 113(9)).
• Section 3 of the Regulation stipulates that the chief of police must immediately advise the SIU should an incident that falls within the unit's mandate occur.
• SIU is the lead investigator which has priority "over any police force" during the course of the investigation (section 5 of the Regulation).
• According to section 11(1) of the Regulation, the chief of police may also conduct an investigation into an incident that the SIU is involved in with the condition that the SIU keep its "lead role" in the investigation.

National Policies

In addition to the proposed External Investigations or Review policy that is currently being finalized by the RCMP, the following national policies were examined: Sexual Offences, Arrest, Emergency Vehicle Operations, Prisoners and Mentally Disturbed Persons, In-Custody Death, Human Deaths, Major Case Management, Guarding Prisoners, and the national Investigation Guidelines policy. A few of the abovementioned policies refer to the possibility of independent investigation into an incident involving RCMP members, specifically Prisoners and Mentally Disturbed Persons, In-Custody Death, Major Case Management and External Investigations or Review.

The Investigation Guidelines policyat the national level emphasizes that if it is within RCMP primary jurisdiction, actions taken must be the same as they would be "for any other person" (F.1.a), whereas if outside RCMP primary jurisdiction, the matter shall be referred to the relevant police department with the primary jurisdiction (F.1.b).

Key features, best practices and omissions in RCMP policies were analyzed and then compared across divisions to determine consistency of application. The key findings of this review are outlined below.

Independence of Investigator

The appointment of an "independent" investigator to ensure the impartiality of an investigation is found in several national RCMP policies. The national Prisoners and Mentally Disturbed Persons, In-Custody Death, Major Case Management and External Investigations or Review policies all require an independent investigator to be assigned in specific cases. The definition of what constitutes an independent investigator, however, varies by policy and division.

In some divisional policies (B, G and J^{Footnote 26} Divisions) the investigator is specifically defined as "independent" only when the member assigned is "from another district/area or another police force." Another divisional policy (E^{Footnote 27} Division) allows for the discretionary appointment of an "autonomous" investigator in incidents involving police pursuits and/or police vehicle collisions that result in serious personal injury or death.

Referral to Another Police Force

Some policies further recommend that member investigations should be referred to another police force entirely to better ensure impartiality. The RCMP's proposed national External Investigations policy and the New Brunswick (J Division) policy are the only two policies that recommend this as an option. It is important to point out, however, that there is no mandatory requirement for any RCMP member investigation to be automatically referred to another police force-this decision remains entirely discretionary at the operational level.

Administrative Review

There is also no national policy that makes an administrative review mandatory for member investigations. An administrative review is defined in divisional policy as: "an independent review of all aspects of an incident undertaken with the express intent of identifying potential deficiencies in policy, training, equipment and/or officer survival techniques." The information gathered through an administrative review can assist the RCMP divisional Commanding Officer to more effectively guide an investigation and discharge accountability to the appropriate federal and/or provincial authorities.

The call for an administrative review is referenced in only two RCMP policies:

• (1) the national Reporting Discharges of Firearms policy orders the assignment of an "independent officer" to conduct the administrative review where appropriate. In cases of serious injury or death resulting from the actions of an RCMP's Emergency Response Team, the "Incident Commander from outside the Division" must be appointed in order to conduct the review.
• (2) At the divisional level, in Manitoba, an administrative review may be ordered at the discretion of the Administrative Services Manager for high profile investigations (defined as those investigations which may result in serious injury or death of a person, or lead to criticism of the RCMP). An independent officer "unassociated with the occurrence" and from a jurisdiction other than the one where the incident took place conducts the review. The recommendations that result from the review must then be directed to "the appropriate police centres for implementation."

Overall, the requirement for an administrative review can only be found in the context of a single national policy and one divisional policy. This results in the inconsistent application of administrative reviews across the country.

Scope of Policy – "Serious" offences only or "all" violations

In reviewing national RCMP policy, specifically Prisoners and Mentally Disturbed Persons, In-Custody Death, Human Deaths, Major Case Management and External Investigations or Review (as well as British Columbia's E Division policy), an issue emerged around the RCMP's definition of what constitutes a "serious" offence that warrants an independent review.

National policy is focused on cases of serious injury or death to a person, at which point the assignment of an independent investigator becomes a possible course of option. In the E Division Investigation Guidelines policy, the District Officer is invited to appoint an independent investigator in cases of "serious personal injury and/or death" resulting from police pursuits or police vehicle collisions.

In some divisional policy (B, D, G and J Divisions^{Footnote 28}) the definition of a serious offence is broadened to any "violation or alleged violation of the Criminal Code, or any other federal or provincial statutory offence" committed by a member. This thereby eliminates the need for the detachment or division to make a determination of what it considers a "serious" offence when calling an independent review.

Policy – Mandatory Actions versus Discretionary Provisions

Below is a summary of the mandatory versus discretionary actions that are prescribed in the national and divisional policies.

National versus Divisional Policy

Each division with a formal "investigations" policy has its own version with differing guidelines as to how member-committed offences should be handled. Only six (of the 14) divisions addressed the issue of member investigations specifically. The table below illustrates some key differences between the newly developed, though not yet implemented, national policy on External Investigations or Review and policies at the divisional level.

Given the absence of direction prescribed in legislation regarding how members should investigate other members, the adequacy of policy to ensure impartiality, transparency and rigour in this process becomes all the more paramount.

Currently, inconsistency is found in policy content and application across 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.

The sheer volume and variety of RCMP policies with implications for the issue of police investigating police is overwhelmingly large (e.g. hundreds of pages of policy relevant to the PIP were reviewed for this report alone). This policy "overload" poses a great threat to the RCMP's operational effectiveness. The very nature of front-line policing requires that direction be provided in a format that is clear, concise and easy to access.

While the new proposed national policy External Investigations or Review takes active steps towards providing consolidated guidance as it relates to the PIP, the content remains vague and far too much discretion remains with the divisions (divisional Commanding Officers, Officers in Charge or Criminal Operations Officers) to determine an appropriate response.

One key feature of the national Investigation Guidelines (and repeated in divisional policy) which bears closer examination is the following passage regarding how an investigation into another member must be handled:

"take the same action as you would for any other person" (F.1.a). While the intention of the RCMP may be an honourable one, given the repeated contention in policy that the handling of an investigation into another member should be managed exactly like any other investigation (meaning without bias), the very nature of an investigation by one police officer into another is fundamentally different than 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. Like other professions that directly impact the safety and welfare of those they serve, there is a public expectation requiring that a higher standard of behaviour be upheld.

In the words of Albert Einstein, "no problem can be solved from the same consciousness that created it." By exposing the police thinking that investigations into its own members should be handled like any other investigation, we begin to identify the root philosophy guiding individual member behaviour. In most cases (while there are always exceptions) problems associated with police investigating themselves are rooted in the very process by which they must operate and not in individual behaviour. Recommendations to address this and other policy concerns are outlined in chapter 8.

Stage 1: CPC Selection Criteria

To ensure the CPC established a strong pool of the most relevant RCMP cases for review, a timeframe of April 1, 2002 to March 31, 2007 was selected in the initial laying of the complaint. This timeframe ensured that the most recent files could be reviewed and enhanced the likelihood that the police and civilians involved in each case would be more readily accessible to interview. This task could have proven more difficult had the investigative timeframe been broadened.

Bearing this five-year timeframe in mind, the CPC Review Team proceeded to identify specific selection criteria to determine which cases would be included in the review. As per the parameters of the complaint, the three general categories for review included: (1) Assault Causing Bodily Harm; (2) Sexual Assault; and (3) Death.

Stage 2: RCMP File Identification

To facilitate the file identification process, the CPC liaised with the RCMP who assisted by identifying a national point of contact from its Community, Contract and Aboriginal Policing Section to manage all CPC-related requests.

The RCMP further provided divisional contacts to facilitate the reviews. And as per the established CPC selection criteria, these divisional contacts (RCMP Criminal Operations Officers in each division) were then asked to identify all files in their respective divisions related to criminal investigations of RCMP members by other RCMP members between April 1, 2002 and March 31, 2007 involving assault causing bodily harm; sexual assault; and death, including death caused by operating a personal motor vehicle (PMV).

Working from the explicit terms of reference and criteria outlined in the Chair-initiated complaint, the CPC and RCMP jointly determined that the best way to identify potential cases for consideration in the investigation was to have the RCMP search their records databases identifying the various sections of the Criminal Code related to charging offences of assault, sexual assault and death. In so doing, all potential cases could be captured. However, many divisions unilaterally searched their databases and then made a determination of those cases that fit within the terms of reference.

Once the cases were identified by the RCMP, they were then sent to the CPC. The CPC investigators manually looked at each case and made a determination as to whether or not each case fit within the parameters of the investigation.

The RCMP was further instructed to identify all possible files for the CPC Review Team, even cases where relevance was questionable.

Stage 3: CPC Preliminary Review of RCMP Files

A combined total of approximately 600 RCMP cases were initially identified across the country that fit the timeframe and offence category.

Text Version

Figure 1: Files Submitted for Consideration by Division

• "K" Division (Alberta): 339 (56%)
• "D" Division (Manitoba): 95 (16%)
• "E" Division (British Columbia): 67 (11%)
• "G" Division (Newfoundland and Labrador): 63 (11%)
• "F" Division (Saskatchewan): 15 (3%)
• "J" Division (New Brunswick): 4 (1%)
• "V" Division (Nunavut): 3 (1%)
• "M" Division (Manitoba): 2 (0%)

It is critically important to note that access to the data on member investigations could not be retrieved through RCMP National Headquarters due to the lack of centralized tracking or monitoring of this type of information on a national scale. The CPC Review Team was therefore required to work with divisional contacts to get access to the necessary information for the purposes of this report.

Like National Headquarters, most divisions do not track member investigations in a formal way. As such, most divisions generated relevant files for the PIP analysis by searching through divisional records housed at their respective Headquarters using key word searches. Some divisions were better able to narrow the scope of their search to fit the parameters of the review through effective record-keeping processes making for easier retrieval, while other divisions did not have the same capacity. For example, due to record-keeping processes and time constraints, Alberta (K) Division simply provided everything that could possibly fit the parameters of the complaint. This helps to explain the higher number of cases received from K Division relative to the rest of the country.

Where a determination needed to be made as to whether an RCMP file was relevant to the parameters of the public interest investigation, the files in question were assessed by the CPC's two investigators assigned the task. Where necessary, the CPC investigators were then deployed to the divisions in question to undertake a file review and make a determination of relevance.

Upon review by the CPC investigators, which in some cases involved travelling to various divisions and individual detachments, approximately 150 RCMP cases were deemed relevant to the parameters of the public interest investigation.

Stage 4 – CPC Sample Narrowed and Files Retrieved for CPC Review

Recognizing that it would be prohibitive to review all relevant cases in each of the three categories, it was determined at the outset that a smaller, more manageable number of cases would be selected for a full-file review.

This sample size was selected in order to narrow the number of case reviews to a more reasonable amount, thereby allowing for a comprehensive examination of the chosen cases, while respecting that a reasonable length of time would be required for each investigation to be undertaken.

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

It is important to note, as per the map outlined next, that the RCMP's Central Region was not represented in the random sample because no cases were identified by Quebec (C) Division; Ontario (O) Division; and HQ National Capital Region (A) Division that fit the parameters of the Chair-initiated complaint. Furthermore, no files were identified by Nova Scotia (H) Division, and Prince Edward Island (L) Division. And while a small number of files were initially identified by the RCMP for New Brunswick (J) Division and Yukon Territory (M) Division, these files did not meet the criteria set out in the Chair-initiated complaint and were therefore excluded. Of concern to the CPC is the absence of any cases identified by the bulk of the Maritimes, given the policing role (all levels of policing) undertaken in Nova Scotia (H) Division, New Brunswick (J) Division, and Prince Edward Island (L) Division, in particular.

Text Version

Figure 2: Number of RCMP Cases Examined by Division

Municipal, Provincial, Federal and First Nations Policing Activities

• "K" Division (Alberta): 4
• "D" Division (Manitoba): 5
• "E" Division (British Columbia): 7
• "F" Division (Saskatchewan): 4
• "G" Division (Newfoundland and Labrador) 1
• "H" Division (Nova Scotia)
• "J" Division (New Brunswick):
• "L" Division (Prince Edward Island)
• "V" Division (Nunavut)
• "M" Division (Yukon)

Federal Territorial and First Nation Policing Activities

• "G" Division (Newfoundland and Labrador): 2
• "M" Division (Manitoba)

Federal and Territorial Policing Activities

• "V" Division (Nunavut)

Federal Policing Activities Only

• "A" Division (National Capital Region)
• "C" Division (Quebec)
• "O" Division (Ontario)

The CPC Review Team investigators analyzed all files and written material provided by the RCMP to assess the appropriate handling of each case against the Chair-initiated criteria and terms of reference (specifically: line management, level of response, timeliness, member conduct, and compliance with policy). In addition, the investigators also sought to determine overall, whether the investigative techniques used were appropriate (or whether others should have been employed), and whether the treatment of the subject member and witness officers was appropriate in each case.

When the final selection of cases was made, if any of the original cases selected were deemed to be outside the parameters of the public interest investigation, the file was removed from the sample and a new file was then randomly inserted in its place. This process ultimately resulted in a random sample of 25 cases for review chosen from across the country. In addition, three cases previously reviewed by the CPC were added to the investigation, resulting in a total overall review of 28 cases.

Overall, of the 28 investigations reviewed, seven (25%) were from British Columbia (E) Division; five (18%) were from Manitoba (D) Division; five (18%) were from Nunavut (V) Division; four (14%) were from Saskatchewan (F) Division; four (14%) were from Alberta (K) Division; two (7%) were from Northwest Territories (G) Division; and one (4%) was from Newfoundland and Labrador (B) Division.

Types of cases reviewed by category

Text Version

Figure 3: Total Cases

• Assault Causing Bodily Harm: 14.50%
• Sexual Assault: 8.29%
• Death: 6.21%

Of the overall 28 cases reviewed, six were death cases, another eight involved sexual assault and the 14 remaining cases were assault causing bodily harm.

Stage 5: Cases for Full-Field Investigation

After completing a comprehensive file review of the 28 cases, the CPC Review Team investigators then recommended that full-field reviews be undertaken for a select number of cases. The general criteria used by the investigators to determine whether a full-field review should be pursued included: the severity of the alleged offence, the charge(s) laid (under- or over-charging or non-charging where it may have been deemed appropriate to do so), any aberrations or questionable practices, as well as best practices. It is important to highlight that one case was selected specifically because it was deemed to be a good example of how an investigation could be undertaken by police due to the exceptional quality of the administrative review.^{Footnote 30}

Overall, eight cases (which included the best practice case) were selected for full-field review. This included five cases from the RCMP-drawn files, as well as one case that was considered a "best practice" example, and three other cases specifically drawn from CPC-housed files that fit the parameters of the Chair-initiated complaint.

Text Version

Figure 4: Divisional Comparison – Full Field

• "B" Division (NF): 1.13%
• "D" Division (Manitoba): 1.13%
• "E" Division (British Columbia): 2.24%
• "F" Division (Saskatchewan): 2.24%
• "K" Division (Alberta): 1.13%
• "V" Division (Nunavut): 1.13%

The final stage involved interviewing the subject and witness officers as well as civilians involved in the cases. The interviews began in October 2008 and included trips to various divisions and detachments. In total, 31 members were interviewed regarding the files selected for in-depth review. Thirteen civilians were asked to be interviewed for the purposes of this report but refused or did not respond to our request for an interview. One comment from a family member associated to one file stated: "It won't do any good, they have all been promoted and transferred out" when referring to the RCMP members involved.

Below is a table that briefly summarizes the location, type of offence, and outcome of each of the 28 cases. Each of the full-field investigations is shaded.

Criterion 1(a) Line Management: any actual/perceived conflict of interest; appropriateness of management structure and reporting relationships

A baseline definition of what constitutes "appropriate" line management for the RCMP's handling of an investigation into another member was developed in order to effectively compare each individual case against established criteria for assessment. The key features of appropriate line management include the following:

1. Sufficient physical and personal distance between the subject member and the primary investigator/investigative team tasked with the investigation.
   • Physical distance defined as investigation handled by a different detachment/division from the subject member's home detachment (or by an external police force entirely).
   • Personal distance defined as subject member not personally known to the investigative team members.
   • Particular attention must be paid to:
     • The primary investigator's physical and personal distance from the subject member;
     • Appropriate use and independence of specialized services used in the course of the investigation (polygraph examiner, accident reconstructionist, etc.).
2. Adequate investigative team makeup to undertake the task (i.e. primary investigator plus another investigative team member at a minimum; primary investigator should be at least one rank higher than the subject member being investigated).
3. Investigating member self-identification of conflict of interest adequately addressed (i.e. where self-identification occurs, appropriate removal from investigative team occurs).

This baseline criteria was assessed against the 28 cases reviewed. Some of the key findings from the CPC investigators' reviews are highlighted below.

1 (a) i. Physical and personal independence of investigative team maintained

Given the significant authority and level of decision-making afforded the position of the primary investigator, it was particularly important to determine what differential, if any, existed between the primary investigators' level of independence relative to the subject member. The proximity was not identified in five of the 28 cases. Three members did not respond to the questionnaire provided them. One investigator did not recall whether he knew the subject member prior to the investigation, and another investigator would not answer the CPC's questions given the civil litigation pending.

The CPC defined "personal knowledge" as any contact with the subject member prior to the incident, which could include:

• working with-or under the supervision of-the subject member prior to the incident (including physical or telephone contact);
• mutual participation or attendance at courses, seminars or any other training event;
• engagement in a function of a social or personal nature which could include an RCMP mess function, a seasonal event (Christmas party), golf tournament or retirement function.

This definition of "personal knowledge," outlined above, was used to assess the level of independence between the RCMP primary investigators and the subject members for each of the 28 cases.

Text Version

Figure 5: Independence of Investigative Team – Primary Investigators

• Subject Member Personally Known: Same Detachment: 4%
• Subject Member Personally Known: Different Detachment: Same Division: 21%
• Subject Member Personally UnKnown: Same Detachment: 0%
• Subject Member Personally UnKnown: Different Detachment: Same Division 57%
• Different Division: 0%
• Outside Police Force: 0%
• Not Specified: 18%

The CPC sought to assess whether the challenges faced by northern and remote RCMP detachments accounted for the bulk of the primary investigators with personal or physical proximity to the subject member. The CPC analysis revealed that of the primary investigators polled, 26%^{Footnote 31} identified themselves as "personally knowing" or "from the same detachment" as the subject member. Of these 26%, 14% were from a remote or northern posting (with 7% coming from Nunavut (V) Division and 7% from Northwest Territories (G) Division respectively).

Text Version

Figure 6: Investigator's Knowledge of Subject Member – Primary Investigators

Northern Detachments – 14%

Different Detachment; Immediate Colleague; Personally Known

• "V" Division (Nunavut) – 2 (7%)
• "G" Division (Northwest Territories) – 2 (7%)

Non-Northern Detachments – 12%

Different Detachment; Immediate Colleague; Personally Known

• "F" Division (Saskatchewan) – 1 (4%)
• "D" Division (Manitoba) – 1 (4%)

Same Detachment; Immediate Colleague; Personally Known

• "E" Division (British Columbia) – 1 (4%)

Please note, the percentages in this graph have been rounded up and are approximate figures, which explains the slightly higher percentage 26% (than in previous "target" graph, which was represented as 25%).

Use and independence of specialized services

Equal attention must be made to ensure the independence of specialized services used in member investigations. These specialized services could include, but are not limited to, polygraph examiners, accident reconstructionists and provincial forensic science laboratories. Lack of independence in the specialized services used could raise a risk of real or perceived conflict of interest.

Out of the 28 cases reviewed, only four used specialized services, including a polygraph examiner in two cases, an accident reconstructionist in one case and a provincial transport vehicle safety examiner. All professionals used by the RCMP in each of these three cases were from different detachments, and in one case from a different division.

One of these four cases could be perceived as lacking independence in the use of specialized services. The accident reconstructionist used in a fatal motor vehicle accident that occurred in Saskatchewan was from a detachment in the same division. Recommendations around the degree of independence believed necessary to ensure impartiality and the absence of conflict of interest are addressed later.

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

Where an expert was required, members did use specialist services available. In a police motor vehicle collision fatality, not only did the RCMP call in forensic personnel, but also requested an accident reconstructionist with the highest level of qualifications, in addition to a provincial ministry of transport vehicle safety examiner as well as an independent member of the First Nations community.

In the two cases reviewed where a polygraphist was used, the examiner was from another division and did not know the subject member.^{Footnote 32}  

1 (a) ii. Appropriate investigative team makeup

Of the 28 cases reviewed, 17 of these had only one primary investigator assigned to a member investigation. Five of the cases had two investigators assigned, five cases were done by a Major Crime Unit (with four to six investigators assigned), and one case had three General Investigation Section (GIS) investigators assigned.

Text Version

Figure 7: Number of Investigators

• 1 Investigator – 17 (60%)
• 2 Investigators – 5 (18%)
• 3 Investigators (GIS) – 1 (4%)
• 4-6 Investigators (MCU) – 5 (18%)

Furthermore, of the 28 RCMP files reviewed, seven of the files were investigated by a primary investigator of the same or lower rank as the subject member.^{Footnote 33}

Text Version

Figure 8: Primary Investigator's Rank Relative to Subject Member

• High Rank: 19 (68%)
• Same Rank: 6 (21%)
• Lower Rank: 1 (4%)
• Unknown: 2 (7%)

This rank differential between the primary investigator and the subject member is deemed to be inappropriate given that it risks the potential for intimidation of the primary investigator by the higher ranking subject member. The possibility also exists that the primary investigator could potentially be supervised at a later date by the subject member, thereby creating the potential for a junior ranking primary investigator affording the higher ranking subject member preferential treatment in favour of future considerations. This potential conflict of interest must be taken into consideration.

The CPC recommends that the rank of the primary investigator be at least one rank higher than that of the subject member. The purpose for this is to avoid possible intimidation of the primary investigator by the higher ranking subject member.

CPC 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.^{Footnote 34}

In addition, assigning a single investigator to a member investigation (as was the case in 17 of the 28 cases reviewed) is a particular concern. Interviewing anyone involved (particularly the subject member) is best conducted by a two-member team. A one-member investigation would contribute to the potential for (or perception of) a conflict of interest.

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

The conflict of interest issue must be taken into consideration in these cases. No explanation of the rationale (be it resources, location or seriousness of the offence) will satisfy the public or other special interest groups that these investigations are unbiased.

Ideally, a minimum of two members assigned to conduct the investigation would assist in expediting the investigation by ensuring that all aspects of an investigation could continue regardless if one member of the team is absent.

CPC 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.

For those investigations involving more than a single investigator (five files that were investigated by the Major Crime Unit (MCU) and the other files where two team members were assigned) the number team makeup is deemed overall appropriate.

1 (a) iii. Investigating member self-identification of conflict of interest adequately addressed (i.e. where self-identification occurs, appropriate removal from investigative team occurs)

There was only one of the 28 cases where self-identified conflict of interest occurred.  This file was from a northern community in a small detachment. The investigation had originally been assigned to the Officer in Charge of the Major Crime Unit (MCU) at the detachment; however, the member declined to investigate given that he was a personal friend of one of the subject members.

The self-identification of conflict of interest by the RCMP member was handled appropriately in this case given that he removed himself from the case. However, the results were less than desirable. The file was then eventually assigned to a Constable with approximately one years experience in the MCU.  The Acting Criminal Operations Officer at the time of the investigation indicated to the CPC investigators that in hindsight this file should have been assigned to an outside municipal police service given that the injuries were severe.

Overall Assessment of CPC Criterion 1 (a) Line Management

Based on the preceding analysis, the graph below summarizes the CPC investigators' overall assessment of the total level of appropriateness of the RCMP line management in the 28 cases reviewed. A total of 19 cases (68%) were deemed to be handled either partially or entirely inappropriately. Of particular concern was the use of a lone investigator and the primary investigator's personal knowledge of the subject member.

Text Version

Figure 9: Line Management Evaluation

• Inappropriate – 9 (32%)
• Partially Inappropriate – 10 (36%)
• Appropriate – 9 (32%)

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

Criterion 1(b) Appropriate Level of Response: response appropriate and proportionate to gravity of incident and whether qualified investigators have been assigned.

A definition of what constitutes an "appropriate" level of response with regards to the RCMP's handling of an investigation into another member was developed in order to effectively compare each individual case against established criteria for assessment. The key features of what constitutes an "appropriate" level of response include the following:

1. Interviews of subject member and witnesses appropriate as well as appropriate access to information.
   • Use of expert witnesses appropriate (i.e. polygraphists, accident reconstruction personnel, identification specialists and other outside agencies were utilized when and where necessary).
2. Referral of investigation appropriate relative to the seriousness of the allegation (e.g. sexual assault, assault with a weapon, criminal negligence causing death).
   • Investigation appropriately redirected and run by the Major Crime Unit (MCU), where appropriate.
3. Investigators met or exceeded baseline qualifications recommended for investigators tasked with in-custody deaths, shootings, serious assaults/injuries and sexual assault investigations):
   • Primary investigator: Prior experience in conducting statutory, public complaint, and Code of Conduct investigations. In addition, the major crime course and interviewing or interrogating techniques courses with knowledge and experience with the Major Case Management (MCM), where possible.
   • Investigative team members: At a minimum, the major crime course and interviewing or interrogating techniques courses. Knowledge and experience with MCM, where possible.
4. Workload of investigation team members adjusted (or reassigned) where appropriate to ensure ability to focus on member investigation.
5. Appropriate consultation with provincial Crown attorney prior to laying of charges.
6. Appropriate use of the administrative review.^{Footnote 36}

This baseline criterion outlined above was assessed against the 28 cases reviewed. The key findings from the CPC investigators' reviews are highlighted below.

1 (b) i. Interviews of subject member and witnesses appropriate

This is deemed to be inappropriate. In reviewing the cases, it was determined that while this type of interviewing technique did not have any negative impact on the outcome, the potential did exist for a conflict of interest (either real or perceived). Furthermore, in order to address any Charter arguments (in relation to duress, intimidation, promises, inducements, etc.) the presence of a second investigator would help to eliminate this potential problem in any future court proceedings.

1 (b) ii. Referral of cases to appropriate section

In those cases involving member-involved shootings or deaths where the possibility of a homicide exists, the divisional Major Crime Unit (MCU) was assigned to the investigation. However, some of the serious assault causing bodily harm incidents were assigned to the Detachment Commanders or general duty members, thereby illustrating that there are no formal criteria in place to identify which section an investigation should be assigned.

It is important to address the inconsistent use of units/individuals assigned to member investigations across divisions. In some divisions, units assigned are called the Serious Crime Units; however, in other divisions they are referred to as the Major Crime Unit.

In one file, the primary investigator asked the Officer in Charge for assistance from the MCU and was refused because the complaint was over twenty years old. However, in the CPC's opinion, the request for the MCU to handle the investigation was valid given that the complainant alleged that members of the RCMP had murdered his son. This example serves to show that in some instances, complaints are not taken as seriously as they should be and not given the proper attention deserved, nor are they assigned to the appropriate units/sections.

1 (b) iii. Qualifications

Earlier in this chapter, a baseline for the qualifications expected for both the primary investigator and the investigative team member were set:

• Primary investigator: Prior experience in conducting statutory, public complaint, and Code of Conduct investigations. In addition, the major crime course and interviewing or interrogating techniques courses with knowledge and experience with the Major Case Management (MCM),^{Footnote 37} where possible.
• Investigative team members: At a minimum, the major crime course and interviewing or interrogating techniques courses. Knowledge and experience with MCM, where possible.

When comparing member qualifications against this criterion, the CPC investigators found that there was a lack of consistency in the qualifications of the members assigned to undertake member investigations. For example, one member had no formal general investigation experience at all (however, he did have 15 years experience in general police duties and had previously conducted approximately 40 statutory investigations).

Based on this analysis, the CPC investigators made additional recommendations regarding the qualifications necessary for members assigned to member investigations.

1 (b) iv. Workload of investigation team members adjusted (or reassigned) where appropriate to maximize focus on member investigation

The workload of the members assigned was a questionable issue. When a file was assigned to a general duty member, in most cases the CPC found that the investigator was not relieved of regular duties. This issue was raised by most members interviewed. As such, member investigations are dealt with when time permits. In cases where the incident is alleged to have occurred some time in the past, members expressed no urgency in completing the investigation.

In the course of an interview with the CPC investigators, one RCMP member revealed that as far as he was concerned, the member investigation was "just another file" among many to him, stating that the file was just another one added to the "pile." The notion of members being given multiple files and no workload adjustment to ensure that adequate attention is paid to ensure an effective and timely investigation is problematic.

1 (b) v. Appropriate consultation with the Crown for determination of charges laid against subject member

One issue of particular relevance in structure and line management is the consultation with a provincial Crown counsel before the laying of a charge. The Criminal Code of Canada gives the police the authority to lay a criminal charge. However, the provincial governments in British Columbia, Quebec, and New Brunswick make it mandatory for police to consult with a provincial Crown counsel before a criminal charge is laid against a police officer or any other person.

National RCMP policy requires consultation with the Crown in all cases as per the national Investigation Guidelines policy, which states:

• F.2. "If there is evidence to support a prosecution, consult Crown counsel."
• F.2.(a). "If there is any conflict with the Crown counsel, refer it to the Cr. Ops. Officer."

Below is a detailed breakdown of the consultation with Crown counsel for the 28 cases:

Text Version

Figure 10: Consultation with Provincial Crown Counsel

• Not Sent to Crown, No Charges Laid – 14 (50%)
• Sent to Crown – 10 (35.7%)
• Sent to Independent Counsel – 2 (7.1%)
• Unknown – 1 (3.6%)
• Not Sent to Crown, Charges Laid – 1 (3.6%)

The CPC review found that the RCMP's consultation with the Crown when laying a charge was handled appropriately overall, with the exception of one case.

This was a Manitoba sexual assault case against a member which resulted in the RCMP laying charges against a member without seeking Crown opinion. The member charged was later acquitted in court. While the lack of consultation is not deemed to have had any direct impact on the outcome of the case, it is a violation of policy that the RCMP must guard against, particularly given the sensitivity, level of transparency and impartiality required for these investigations.

Overall, while member actions did comply with policy, the CPC found a discrepancy between the current consultation process with the Crown for cases involving RCMP members and all other cases. At present, when the RCMP sends a file to the Crown which involves an RCMP member, the RCMP does not include a recommendation regarding how the member should be charged. This differs from the standard procedure for all other cases (not involving RCMP members) where a recommendation on how to proceed is, in fact, included.

Within the context of his Inquiry into the Death of Frank Paul, Justice William H. Davies, Q.C. also found that in British Columbia, in the case of every police-related death, the Vancouver Police Department forwards a "neutral" report to Crown counsel without making a recommendation as to whether criminal charges should be laid, which contradicts the departmental manual requiring police officer to send the report to Crown counsel only "if the evidence supports a charge."

1 (b) vi. Appropriate use of administrative review

As outlined previously in this report, an administrative review is generally defined as an independent review of all aspects of an incident undertaken with the express intent of identifying potential deficiencies in policy, training, equipment and/or member techniques.

The four administrative reviews undertaken resulted in one instance of the investigators being instructed to interview one or two more witnesses before completing the investigation.

Use of the probe

The use of a "probe" in one specific division, Manitoba (D), is a best practice worth noting. A "probe" is often ordered when a complaint has a criminal element but may lack sufficient information to determine how to proceed. The "probe" consists of:

• Interviews with the complainant, victim and any other third-party witnesses;
• A review of operational files related to the complaint; and
• A review of members' notes and reports;

* It is important to note that subject members are not to be requested to provide witness or warned statements at this time.

The investigator assesses the information collected from the probe and drafts a report that summarizes the incident, the complainant's statement, and the results of the file review, helping to determine how best to proceed.

CPC Recommendation No. 8: The RCMP should consider applying the use of the "probe" to lower-end investigations in all divisions.

CPC 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.

In addition, the probe report should be in an investigation report form and should include appendices of all referenced material, including a copy of the operational file from which the complaint stemmed. It is important that the report be fact-based, and not opinion-based. The investigators' role is to simply present the facts and should focus solely on the criminal aspects of the complaint and not any potential Code of Conduct issues.

Overall Assessment of Criterion 1(b) Level of Response

Based on the preceding analysis, the graph below depicts the CPC investigators' overall assessment of the level of appropriateness of the RCMP level of response in the 28 cases reviewed. Sixty-eight percent of cases were deemed to be handled partially or entirely inappropriately.

Text Version

Figure 11: Level of Response Evaluation

• Inappropriate – 7 (25%)
• Partially Inappropriate – 12 (43%)
• Appropriate – 9 (32%)

CPC 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.

Otherwise, it was found that all witnesses who were willing to cooperate were interviewed, witness statements taken, as well as expert witnesses (i.e. polygraph examiners, accident reconstruction personnel, identification specialists and other outside agencies) were used when and where necessary.

Criterion 1(c) Timeliness of Response: investigative team responded in timely manner

A baseline definition of what constitutes a "timely" response by the investigative team was developed in order to effectively compare each individual case against established criteria for assessment. The key features of appropriate timeliness of member investigations include the following:

1. Member investigation undertaken and completed in six months (or less).
2. Investigations, if possible, should not exceed one year.^{Footnote 38}
3. Immediate dispatch of necessary personnel where timely response required.

The following section assesses the overall timeliness of the 28 cases reviewed against the established baseline criteria, outlined above.

1 (c) i. Overall completion of member investigation in six months (or less)

Text Version

Figure 12: How Long Does The Investigation Take?

• Low: 5 Days
• Average: 6 Months
• High: 2 years

The CPC review revealed that the average amount of time for the 28 criminal member investigations was six months. In taking a closer look at these numbers, the graphic below demonstrates that the timeliness of the member investigations is, overall, appropriate. The bulk of the cases (60%) were completed in less than six months. However, 19% of the cases did exceed the one-year mark, as addressed next.

Text Version

Figure 13: Timeline for the Investigation: Number of Months

Less Than Six Months (60%)

• 1-2 Months – 39%
• 4-5 Months – 21%
• 7-8 Months – 14%
• 10-11 Months – 7%

Over One Year (19%)

• 15-16 Months – 11%
• 20-21 Months – 4%
• 27-28 Months – 4%

1 (c) ii. Investigations, if possible, should not exceed one year

As per the above timeline, when a member investigation takes longer than one year to complete, these subject members could be excluded from any Code of Conduct (section 43(8) of the RCMP Act) action that may follow. In addition, should the one-year limitation period lapse, members could also be precluded from being charged under some offences of the Criminal Code. This requires that particular attention be paid to ensure the timeliness of these investigations. Out of the 28 cases reviewed, 19% (five cases) took over one year to complete-which could have excluded members from the RCMP internal disciplinary processes, if required.

It is important to contextualize that of the 28 cases reviewed, no charges were laid in 23 cases.

Text Version

Figure 14: Charges Laid Against Subject Members

• No Charges – 23 (82%)
• Charges – 5 (18%)

Cases Where Charges Were Laid Against Subject Members^{Footnote 39}

Of the five cases where charges were laid, a total of eight charges were laid.

1. One case that occurred in Newfoundland and Labrador (B) Division, where the subject member was accused of sexual relations with young persons while on duty in the victims' community, the following charges were laid:
   • Sexual Assault (s. 271 C.C.)
     • Outcome: Charge withdrawn.
   • Sexual Exploitation (s. 153 C.C.)
     • Outcome: Subject member pleaded guilty.
2. One case that occurred in Manitoba (D) Division, where the subject member was accused of sexually assaulting another RCMP member in a private residence, the following charge was laid:
   • Sexual Assault (s. 271 C.C.)
     • Outcome: Subject member acquitted of charge at trial.
3. In the case that occurred in British Columbia (E) Division, where the subject member was accused of assault causing bodily harm against a civilian during questioning, the following charges were laid:
   • Assault Causing Bodily Harm (s. 267 (b) C.C.)
     • Outcome: Subject member pleaded guilty.
   • Torture (s. 269.1 C.C.
     • Outcome: Charge withdrawn.
   • Obstructing Justice (s. 139 C.C.)
     • Outcome: Charge withdrawn.
4. In the case that occurred in Saskatchewan (F) Division, where the subject member was accused of sexually assaulting a civilian in a private dwelling, the following charge was laid:
   • Sexual Assault (s. 271 C.C.)
     • Outcome: Subject member pleaded guilty.
5. In the case that occurred in Alberta (K) Division, where the subject member was accused of using excessive force against a civilian during arrest, the following charge was laid:
   • Common Assault (s. 266 C.C.)
     • Outcome: Charge stayed.

Text Version

Figure 15: Convictions

• Sexual exploitation of a young person (s.153 C.C.) – 1 (33%)
• Assault causing bodily harm (s. 267 (b) C.C.) – 1 (34%)
• Sexual assault (s. 271 C.C.) – 1 (33%)

Text Version

Figure 16: No Convictions

• Sexual Assault (s. 271 C.C.) – 2 (40%)
• Common Assault (s. 266 C.C.) – 1 (20%)
• Torture (s. 269.1 C.C.) – 1 (20%)
• Obstructing Justice (s. 139 C.C.) – 1 (20%)

Of the eight charges laid, only one went to full trial resulting in an acquittal.

1 (c) iii. Immediate dispatch of necessary personnel where timely response required

The overall timely completion of the investigations depended a great deal on what unit was assigned the investigation. For example, should the investigation be assigned to only one regular General Investigation Section member with an active workload, the investigation could take months to complete. Given that 17 of the 28 cases involved a single investigator assigned to the file, in some cases, this resulted in the file standing still due to the member's time off, sick leave, court appearances, attendance at courses as well as regular days off.

Another major factor that affects the timeliness of the investigation is the transient nature of the civilians and witnesses involved. This was evident in some of the files reviewed. In one particular case the primary investigator sent alerts to the detachments in an attempt to locate the complainant resulting in weeks of inactivity on the file. When located after several weeks, the complainant told the primary investigator that he did not want to become involved. It should be noted here that this was a third party complaint that was made and assigned to a General Investigation Section member who again had a significant workload. In another file, the complaint named a witness who lived in various towns and who was extremely difficult to locate, only to discover, upon interviewing him, that the witness knew nothing of the incident being reported.

Overall Assessment of Criterion 1 (c) Timeliness

As illustrated in the graph below, the timeliness of the 28 cases was deemed to be overall appropriate (82%).

Text Version

Figure 17: Timeliness Evaluation

• Inappropriate – 1 (4%)
• Partially Inappropriate – 4 (14%)
• Appropriate – 23 (82%)

Criterion 1(d) Conduct: conduct consistent with section 37 of the RCMP Act

A baseline definition of what constitutes "appropriate" member conduct, for the purposes of this analysis, was based on how well members complied with section 37 of the RCMP Act. Section 37^{Footnote 41} legislates eight specific criteria requiring that members, as representatives of the RCMP, act respectfully, dutifully and free from conflict of interest.

The CPC investigators based their opinion regarding the conduct of the investigating members on the thoroughness of the files, the quality of the reports, the video taped interviews of subject members, and the manner in which the interviewed members conducted themselves with the CPC investigators. Also taken into consideration in determining the conduct of the subject members was the fact that in most cases statements were supplied to the investigators despite not being compelled to do so.

The CPC investigators assessed the conduct of the primary investigator and the other investigative team members and did not identify any issues with regards to the conduct of these RCMP members. It is worth noting that in one investigation the conduct of the subject members came into question by the trial judge. It was his opinion that the civilian person charged with assaulting police was in fact the subject of police brutality.

Overall Assessment of Criterion 1(d) Conduct

The overall assessment of appropriate member conduct is depicted below. CPC investigators found that 100% of cases were handled in full compliance with section 37 of the RCMP Act.

Text Version

Figure 18: Conduct Evaluation

• Inappropriate – 0%
• Partially Inappropriate – 0%
• Appropriate – 100%

Handling of Historical Cases

A key issue that emerged from the case file review involved the RCMP's handling of historical complaints in particular. A complaint filed months or years following an incident is referred to as a "historical case." The very nature of historical cases can make access to evidence and witnesses more challenging, requiring specialized skills and attention not typical of most investigators. These types of investigations can be further complicated by witness memory (or lack thereof), loss of evidence, an inability to locate identified witnesses and the inability to properly identify the subject member in question. Furthermore, not having the appropriate time to conduct a thorough investigation can result in a perception of a conflict and a lack of interest by the investigator.

In these types of historical cases, it was found that the push for immediate action on the part of the investigating member was not paramount. It was found that historical allegations would be investigated like any other file and would fall into the everyday workload of the investigator. During a CPC interview, one investigator questioned why he would prioritize a historical complaint against a member over his other investigations which were just as important to him (as well as to the complainants).

An assessment of whether RCMP historical member investigations were handled appropriately revealed that, overall, these types of cases were not given priority and took an atypically long time to investigate. Of the three historical cases reviewed, two of them took more than a year to complete the investigation.

Text Version

Figure 19: How Long Do Historical Cases Take?

Three cases reviewed relate to incidents which took place before 1990. The following graphs indicate the length of time it took the RCMP to investigate these incidents starting from the complaint date.

• Case 1: 2 Months
• Case 2: 14 Months
• Case 3: 28 + months*

* The investigation for Case 3 was ongoing for 28 months and had not been concluded at the time of this report.

Overall assessment

The relatively minor occurrences of non-compliance with policy were discovered by the Senior Officer conducting an administrative review relating to two violations of the cell block policy. They were as follows:

1. The members did not have detailed notes placed on the investigative file certifying the person to be fit for incarceration in contravention of the Assessing Responsiveness/Medical Assistance policy (OM19.2.2.5).
2. The lodging member failed to complete the area on C-13, which is the cell block form that lists all the persons in the cells and why they are there, indicating the date, time and who medically examined the prisoner and determined he was fit to be incarcerated in contravention of the Assessing Responsiveness/Medical Assistance policy (OM19.2.2.5.1).

In another file involving an alleged sexual assault, the investigators laid a charge without consulting with the provincial Crown. This therefore contravenes national policy as per the national Investigation Guidelines policy, which states:

• c. F.2. "If there is evidence to support a prosecution, consult Crown counsel."
• d. F.2.(a). "If there is any conflict with the Crown counsel, refer it to the Cr. Ops. Officer."

Overall Assessment of Criterion 2 Policy Compliance

The graph below depicts the overall assessment of compliance with RCMP policies (93%). In only two cases, the failure of consultation with the Crown counsel and failure to comply in full with the Assessing Responsiveness/Medical Assistance policy led to non-compliance with the required policies.

Text Version

Figure 20: Policy Compliance Evaluation

• Inappropriate – 2 (7%)
• Partially Inappropriate – 0 (0%)
• Appropriate – 26 (93%)

1.1 Police Investigating Police

The police investigating police sub-type is representative of an oversight agency that does not undertake criminal investigations. It remains essentially a model that exists alongside police forces responsible to undertake criminal investigations into cases involving other police officers.

This model may involve a civilian review body that investigates allegations of disciplinary misconduct (exemplified by Manitoba's Law Enforcement Review Agency) or an appellate authority with respect to public complaints about the policies, services or conduct of police officers without interlocutory powers of review (Ontario's Civilian Police Commission). It may be an agency that recognizes complaints limited to service or policy, internal discipline or public trust (such as Police Complaint Commissioner in British Columbia), or it may be an independent civilian body which administers the public complaints process (the newly established office of the Independent Police Review Director in Ontario). It could also be a body which examines potential violations of the code of ethics by police officers, special constables and highway controllers (represented by the oversight system in Quebec in the authority of the Police Ethics Commissioner and the Police Ethics Committee).

In any case, the agency is responsible for non-criminal complaints and in the case of potential criminal offences, it refers the file either to the appropriate police force or the office of the Attorney General for further decision.

The composition of the police investigating police model is varied, consisting of a mixture of civilians and former police officers. In the case of the Quebec Police Ethics Commissioner's investigative team, a specific provision mandates that should the investigators be former police officers, they cannot participate in a case involving their former police department.

Some of the perceived advantages of this dependent model sub-category include the tenet that police have the necessary investigative skills and access to appropriate resources (e.g. forensic support) for the task, in addition to the requisite legal authority and powers to complete investigations, particularly regarding Criminal Code issues. Further, others posit that police have a better understanding of the RCMP's operating organizational and cultural dynamics which can secure more legitimacy in the process in the eyes of members, thereby resulting in enhanced cooperation.

The challenges associated with the police investigating police model have been highlighted previously. To summarize, some argue that police do not take seriously most public complaints and assign limited investigative resources and expertise to the process.^{Footnote 48} Police officers are deemed to be sympathetic and responsive to informal police cultural norms and perspectives which protect individual officers and undermine the investigative process. Police officers can be pressured by other police and the police culture ("blue wall" "blue curtain", "code of silence") to conduct ineffective investigations. At most salient, this model is deemed failing to meet the basic standards of public accountability.

1.2 Police Investigating Another Police Force

The second sub-category of the dependent model involves outside police force investigation. In essence, it is still representative of "police investigating police," but in cases involving serious injury or death, police investigate another police force. Formal agreements or protocols such as memoranda of understanding between different policing bodies in some cases ensure that one police force is not in charge of investigations of incidents involving its own members.

In the Canadian context, formal agreements between some local police forces and the RCMP allow an outside police force to handle the investigations of RCMP members. Such mechanisms allow for a perception of independence and objectivity of the investigation and minimize the negative effects of internal loyalty and solidarity on the completion of a fair investigation. In addition, the external police invited to conduct the investigation possess all the required expertise and resources to investigate in an effective manner, as well as the necessary understanding of the organizational and cultural dynamics required for investigations.

However, the use of an external police force for member investigations remains highly discretionary and inconsistently applied across RCMP divisions. Having an external police force investigate the RCMP may provide only the appearance-but not the reality-of an independent investigation. Many seriously question the possibility of independence for external police investigations due to occupational and cultural police philosophies which can jeopardize the protection of the individual member thereby undermining the integrity of the investigation (e.g. "blue wall," "blue curtain" or "code of silence").

There is also little evidence that external police officers do actually obtain higher levels of police cooperation from other police in complaint investigations to justify their involvement, and without public oversight external investigations of this nature often produce similar findings to an internal investigation and result in a low level of substantiated complaints.

2.1 Civilian Observation

The first sub-category of the interdependent model combines the police investigation with the input of an independent civilian observer who monitors the impartiality of the investigation. This model allows for engaged civilian oversight and direct influence in the investigative process.

One advantage of this model is that it offers a civilian, non-police influence, thereby enhancing public accountability and transparency to an otherwise internal police-centric public complaints process. Civilian observation provides an opportunity to monitor the adequacy and effectiveness of police complaint investigations. Civilian observation of police investigating police provides a level of transparency and public information to an otherwise internal and closed process.

A potential disadvantage is that civilian observers cannot conduct their own investigations and are therefore entirely dependent upon police investigations of police officers in the first instance. Concern also exists as to which part of the criminal investigation the observer should be privy to, as the observer's presence then allows for compellability in court. Also, civilian observation of police investigations may be viewed as illegitimate, unqualified and inappropriate by some police officers and associations.

In addition, civilian observation is viewed as costly, ineffective and time-consuming; poor value for money; and despite civilian involvement in the review of police investigations some critics argue that it has not created an increase in sustained complaints and publicly satisfactory outcomes.

2.2 Hybrid Investigation

The second sub-type of the interdependent model is a hybrid investigation. This model involves active participation of civilians in the investigative process in the form of collaboration with the police force, management of the police investigation, or, in exceptional circumstances, the ability to assume control of the investigation.

In most cases, therefore, the hybrid model assumes some form of engagement between the oversight agency and the police force. The latter is still involved in the investigation but it is obliged to report to, follow, and cooperate with, the oversight body. In exceptional cases, the police may even reassign its authority over the investigation to an outside agency whose role goes far beyond that of an overseer.

One example of this model is the Alberta Serious Incident Response Team (ASIRT), an agency that was created to be deployed in events involving serious injury or death (and other sensitive or serious matters). The ASIRT, therefore, embodies this model given its blend of civilians and seconded police officers who work together on investigations.

The hybrid sub-category, however, also allows for the possibility that the oversight body conduct an investigation on its own. Saskatchewan's Public Complaints Commission (PCC) has the ability to assume the responsibility of the police investigation at any point it feels necessary to do so and in that instance the police service must desist from its investigation and provide all required assistance to the members of the PCC. The Independent Police Complaints Commission (IPCC) from the United Kingdom can supervise an investigation conducted by the police, but it can also manage the investigation or undertake one independently, the outcome of which is not subject to appeal. In exceptional cases, South Australia's Police Complaints Authority (PCA) may decide to conduct an investigation on its own and recently, the PCA Chair has in fact investigated one case to avoid giving rise to the appearance of bias.

In most cases, however, such occurrences are an exception to the rule. Agencies that represent the hybrid model rely largely on the investigative expertise of the police service and use it as groundwork for the proceedings. The United Kingdom's IPCC admits that often it uses a police forensic investigator to secure the scene of the incident. The Independent Police Conduct Authority (IPCA) from New Zealand can oversee a police investigation and may give directions to the police in that respect. It cannot remove the investigation from the police control, but it can carry out its own separate investigation. The IPCA investigators, thus, largely use the work done by the police as the foundation upon which to develop their own further investigation. In the case of South Australia, most investigations are conducted by the internal investigation unit of its police service and the role of the PCA revolves around monitoring and inspection functions.

The composition of bodies representing the hybrid sub-category varies depending on their nature and mandate. The Alberta Serious Incident Response Team exemplifies a mix of civilians and seconded provincial as well as RCMP police officers. The remaining four bodies, Saskatchewan's Public Complaints Commission, UK's IPCC, South Australia's PCA and New Zealand's IPCA, are composed of civilians and retired/former police officers from the local police force, the federal police force, or abroad. In the case of the United Kingdom's Independent Police Complaints Commission, legislation mandates that none of its 15 Commissioners have worked for the police service, Her Majesty's Revenue and Customs (HMRC) or the Serious Organised Crime Agency (SOCA) in any capacity.

An obvious advantage of a hybrid investigation model is that it combines the expertise and capabilities of policing with civilian independence and objectivity. Seconded police officers retain essential police powers for the conduct of criminal investigations which civilian counterparts do not normally possess. Seconded or retired police officers also bring an understanding of the police organization and culture, which may produce a more cooperative investigative environment. In addition, seconded or retired officers could have specialized investigative skills and aptitudes that civilian investigators may not possess. Overall, a synergy between the different skills and experience of civilian and police investigators enhance the complaints investigation process.

The Director of the Alberta Serious Incident Response Team pointed out that "it's really important to strike a balance between investigative expertise and independence. A truly integrative unit reporting to a civilian ensures independence."^{Footnote 52} The integrated approach of ASIRT gives it "immense strength."^{Footnote 53} The Police Ombudsman for Northern Ireland expressed similar sentiment: "If you build a mix of seconded and retired police officers as well as civilians, you will build a body that is competent, professional, fair and accountable."^{Footnote 54}

Furthermore, the hybrid model can be seen as cost-effective and time-efficient. By using seconded or former police officers alongside civilian employees saves the time it would take to properly train civilian investigators who lack field experience. Saskatchewan's PCC Director admits that investigative expertise is crucial: "There is a point to be made that a good investigator has to have good knowledge of what he investigates."^{Footnote 55} The Police Ombudsman for Northern Ireland emphasizes: "To investigate properly, we have to be just as good if not better [than police officers involved] and it takes a great deal of sophistication and time to properly train investigators."^{Footnote 56}

Finally, the hybrid investigation model effectively allows the police to take an active part in the oversight process. By introducing police officers into the mechanism of police oversight and review, it increases the chance that the findings from the investigation are heard and recommendations followed. The Chair of the South Australian Police Complaints Authority points out that the key advantage of the hybrid model is that it "creates a system in which the police are very much part of the solution to whatever problems they may have."^{Footnote 57} According to the PCA Chair, this is essential to the success of good policing: "If you want your jurisdiction to have a good police force, the force has to be a part of the solution."^{Footnote 58}

A potential disadvantage of this model is that the introduction of police culture and police values through the ongoing involvement of retired or seconded police may inhibit the development of a new civilian organizational culture. This risks jeopardizing the process and it may also be difficult to either second or attract experienced senior police investigators to an integrated model in which they do not have authority or control.

Domestic examples of the independent model

Ontario's Special Investigations Unit (SIU) is the Canadian example of the model of independent investigation. Created in 1990, the SIU investigates the circumstances of serious injury or death as well as allegations of sexual assault that may have resulted from criminal offences committed by police officers. The agency has full powers to investigate and charge officers with a criminal offence. The SIU has recently undergone some criticism from the Ontario Ombudsman who in September 2008 released a report on the SIU entitled Oversight Unseen. The Ombudsman noted, however, some positive features such as no evidence of biased investigations and the strong commitment of SIU staff.

International examples of the independent model

Within the international context, the municipal Independent Police Review Authority (IPRA) for the city of Chicago embodies the independent investigation model, whereas the Police Ombudsman for Northern Ireland exemplifies the model in Europe.

IPRA was created in September 2007. The Office of Professional Standards (OPS) became separated from the Chicago Police Department (CPD) and IPRA replaced the OPS as an independent department of the City of Chicago. In the case of IPRA, all complaints are logged automatically and are therefore on record. IPRA retains those which pertain to its mandate.

IPRA investigates complaints made against all CPD officers in cases of domestic violence, excessive force, coercion and verbal abuse based on bias. In addition, IPRA automatically investigates all cases where a firearm or taser was discharged in a manner that could potentially strike an individual regardless of whether there is any alleged misconduct, as well as all "extraordinary occurrences" (any death or injury to a person while in police custody, any suicide or attempted suicide).

The office of the Police Ombudsman for Northern Ireland, established in 2000, was part of several developments in the area of policing that occurred following the Belfast Agreement. It has jurisdiction over police officers of Belfast Harbour, Larne Harbour, Belfast International Airports and the Ministry of Defence, as well as the Serious Organized Crime Agency and is expected to be extended shortly to the UK Border Agency. The Police Ombudsman has several options upon the completion of the investigation: he/she may recommend prosecution, disciplinary proceedings, compensation, or reject the complaint altogether. In 2007-2008, 11 cases involving 12 police officers were prosecuted.

Key stakeholders that recommend this model as the way to go

The CPC identified a number of recommendations that advocate a dependent model for police investigations of their own members. Of these recommendations, four by coroner's juries, and by a judge, specifically advocated that investigations of "serious injury, assault or death"^{Footnote 67} involving the police be conducted by "an external police agency."^{Footnote 68}

A medical examiner suggested that it is not improper for police services to investigate their own members in cases of serious injury or death, since they become public inquiries "where concerned parties can raise questions."^{Footnote 69} A police force supported the idea of a dependent police investigations model, but made an important distinction. Although the police service supported an "integrated police response" to critical police-related incidents, "with investigators from multiple jurisdictions including the subject police service," they were careful to specify that "[t]he lead investigator, however, should not be from the subject police service."^{Footnote 70} Another recommendation echoed a similar sentiment, calling for an integrated regional team to be assembled to investigate "statutory complaints where the circumstances of a complaint necessitate a more thorough investigation than usual."^{Footnote 71}

Three recommendations focused on the specifics of these police-involved incidents, and not the models themselves. The first of these called for a review of police-involved incidents by the police force involved in order to determine "whether re-training of the officer is required before the officer resumes active police duties."^{Footnote 72} The next recommended that formal debriefing sessions be held "with all involved police officers following the completion of any [...] investigation after an incident involving a fatality while in custody."^{Footnote 73} The final recommendation requested that interviews of involved officers be conducted within a specific time frame after a lethal force situation.^{Footnote 74}

Key stakeholders that recommend this model as the way to go

The CPC has identified a total of seven recommendations that advocate the adoption of an interdependent model to conduct the investigation of police-involved serious incidents. Many gave salient explanations for their choice to support an interdependent model. The head of a police commission stated that "for any oversight agency to be effective, it requires a range of capacities and people with a range of skills. It's helpful to have both perspectives-you need a combination of individuals with practical police knowledge to bring both perspectives so that you can make balanced decisions."^{Footnote 75} Another recommendation stated that "it's really important to strike a balance between investigative expertise and independence. A truly integrative unit reporting to a civilian ensures independence."^{Footnote 76}

An international recommendation supported the hybrid approach to these investigations because it "creates a system in which the police are very much part of the solution to whatever problems they may have."^{Footnote 77} Another international recommendation addressed the uniqueness of the Canadian policing environment by stating that "a 'totally civilian' body may be impractical. It takes a great degree of sophistication and time to properly train investigators. That is why introducing seconded police officers may be preferable."^{Footnote 78} Yet another international agency recommended that an interdependent model "to best support the public interest, serious complaints of police misconduct should be carried out by independent investigators, or by police investigators working under the oversight of an independent authority."^{Footnote 79}

Finally, a recommendation contained in the CPC's Kingsclear Investigation Report advocated that "appropriate response and accountability mechanisms be put in place at the senior officer level to enable senior officers to monitor continuously the progress of any sensitive or large-scale investigation and assure the public of transparency, effectiveness and impartiality."^{Footnote 80} Justice Dennis O'Connor, in his report following the Public Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, recommended that the CPC be expanded to include more powers and the ability to "conduct joint reviews or investigations with SIRC and the CSE Commissioner into integrated national security operations involving the RCMP."^{Footnote 81} Another recommendation from the same report also stated that the reformed organization should have the ability to "refer a complaint to the RCMP or to investigate the complaint itself, if deemed appropriate."^{Footnote 82}

Key stakeholders that recommend this model as the way to go

The commission identified a total of 11 recommendations that advocated an independent model to conduct investigations of member-involved serious incidents. While some of these recommendations centered on the need to create bodies independent of the police to investigate critical police-involved incidents,^{Footnote 83} others simply reiterated the need for all such investigations to be undertaken by independent bodies in those provinces where such an organization currently exists.^{Footnote 84} Where such organizations do exist, recommendations were made to enhance cooperation and communication between the body and the police forces they investigate,^{Footnote 85} and instructions given to ensure that interviews are conducted in a culturally sensitive manner.^{Footnote 86} A recommendation was also made by a coroner's jury specific to police-involved fatal motor vehicle incidents, which suggested that "collision reconstructionists contracted by the Chief Coroner" investigate such incidents.^{Footnote 87}

Two non-governmental organizations (NGOs) emphasized that the RCMP should no longer conduct investigations in cases of serious injury or death that resulted from the actions of their own members. One NGO proposed dissolution of the current CPC and establishment of a brand new civilian oversight body which would, among others, have the authority to investigate cases of police-involved death or serious injury, or a "matter of great public concern."^{Footnote 88} The second NGO advocated the creation of a new agency independent of the RCMP, which would investigate officers whose on-duty conduct resulted in serious injury or death.^{Footnote 89} It was recommended that this new oversight body should be comprised of men and women who are not currently members of any police force.^{Footnote 90} A further recommendation states that any former RCMP members employed by this body should be prohibited from investigating their former departments or colleagues,^{Footnote 91} a concern which was echoed in the Ontario Ombudsman's investigation into the Special Investigations Unit.^{Footnote 92} The Ombudsman also made numerous recommendations concerning the need to ensure that the recruitment of civilian investigators is increased through an open process.^{Footnote 93}

Procedural Recommendations

Prior to addressing the specific policies and protocols required for the handling of RCMP member investigations, it is first necessary to point out that, in the opinion of the CPC, 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.

As identified through the report's case file and policy reviews, the current RCMP handling of member investigations (regardless of the type) remains entirely discretionary at the divisional level. There is no current national, HQ oversight of the process and no mandatory actions required for any member investigation. 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

Figure 23: Recommended RCMP Response to Member Investigations

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 offencesFootnote 95 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).

Policy Recommendations

The CPC's policy analysis revealed that RCMP policies, while voluminous, are inconsistent and do not adequately address the handling of member investigations. Criminal investigations into members should not be treated the same as any other criminal investigation. To address the current void in effective and consistent policies and procedures related to the handling of member investigations, the CPC recommends the following key changes:

• Criminal investigations of RCMP members into allegations of serious injury, sexual assault or death in hardship or remote postings must be consistent with all other member investigation protocols, no exception.
• An administrative review is mandatory for all member investigations.
• The RCMP establish formalized MOUs for every RCMP division to ensure the mandatory referral of member investigations to an external police service is consistent and documented. At present, only New Brunswick (J) Division, Nova Scotia (H) Division and Newfoundland (B) Division have formalized MOUs in place.

Where it is deemed appropriate for the RCMP to handle its own member investigation or where an RCMP member forms part of the investigative team (led by an external police force), the following policy recommendations would apply.

• Create an RCMP integrated manual to specifically address procedures for investigations undertaken by the RCMP into one of its own members. This integrated manual should have links to any additional relevant policies for ease of reference. Key features to be included in the integrated manual:
  • CPC recommended investigative team structure:
    • Qualified primary investigator at least one rank higher than that of subject member;
    • A minimum of two members required for every member investigations (including for subject and witness officer interviews) [the CPC found that 17 of 28 cases reviewed had only a single member assigned];
    • Qualifications of investigative team mandatory [as per recommendation];
    • Workload of members assigned to member investigations reassigned or adjusted to prioritize member investigation accordingly;
    • Timely completion of investigation preferably six months and not recommended to exceed one year;
    • Assign liaison position to member of investigative team to ensure timely and effective communication with public, family and subject member;
    • Self-identification of knowledge of subject member mandatory (i.e. conflict of interest form);
    • Use of a probe for lower-end investigations.^{Footnote 96}