Appendices: Public Interest Investigation into RCMP Member Conduct Related to the 2010 G8 and G20 Summits

A. Basic Principles

The following principles are foundational to our analysis:

1) There is a continuum of empowerment of a police force, from no authority, to authority, to being required to act.

We see three points on the continuum of police force empowerment: 'no authority', 'authority', and 'required to act' between which the lines, to use a legal phrase more used in the U.S., are not always bright.

• We must understand what the different steps on the continuum are.
• No authority: e.g. A police officer from the Calgary police force has no authority to act Ontario (unless special measures are taken, such as swearing in as a special constable).
• Authority to act (or 'have jurisdiction'):
  • RCMP have authority to act anywhere in Canada:

Statute

"9. Every officer and every person designated as a peace officer under subsection 7(1) is a peace officer in every part of Canada and has all the powers, authority, protection and privileges that a peace officer has by law..." [Emphasis added] (RCMP Act, s.9)

Cases

"10 In reviewing the scheme and object of The Royal Canadian Mounted Police Act it clear that section 3 and section 9 of that Act operate to render the Royal Canadian Mounted Police officers part of a "police force for Canada" and peace officers "for every part of Canada" with "all the powers, authority, protection and privileges that a peace officer has by law". The language used by parliament is clear, broad and unambiguous as it was their obvious intention to create a police force that operates without jurisdictional barriers throughout the entire country of Canada. There is nothing in the scheme or object of The Royal Canadian Mounted Police Act that derogates from that basic presumption. This court notes that when there is a limitation on their duties it is clearly stated. For example, section 18 of The Royal Canadian Mounted Police Act limits the Royal Canadian Mounted Police to enforcing only the provincial laws of the province in which they are employed.

[...]

19 When examining [sic] Section 21 of The Police Act 1990 [of Saskatchewan] one notes there is no clear language to imply derogation from the rights of an R.C.M.P. peace officer. The Act simply states that the R.C.M.P. are responsible for policing when there is an agreement between the province and the federal government. It further states that they are not responsible for policing a municipality unless there is an agreement. They certainly do not use words that the R.C.M.P. officer cannot or shall not provide police services in the municipality. As well, given the ultra vires statute construction doctrine, it would not be appropriate for provincial legislation to take away powers given by Federal legislation. This court therefore reads the provincial legislation in a manner in which the legislature is not taken to have exceeded it's jurisdiction. Therefore clearly The Police Act must be read in context as providing a manner of funding policing not a manner of taking away jurisdiction granted to R.C.M.P. officers by The Royal Canadian Mounted Police Act.

20 In coming to this conclusion the court is of a view that there is no good public policy reason for the R.C.M.P. to be excluded from operating in any specific geographic area. It would not make sense for the legislature to limit the opportunity for policing of a community by making sure that fewer police officers are able to act in any particular setting within the province." [Emphasis added] (R v Abrametz, (2000) 7 MVR (4th) 133 (Sask Prov. Ct.), paras. 10 and 18-20, affirmed in 2001 SKQB 129)

"34 Therefore, Cp. Popoff did have the lawful authority as a member of the RCMP to conduct the investigation of the accused's conduct and to make the breath demand, even though all of that occurred within the corporate limits of the City of Saskatoon, and when he was off duty. Neither the pertinent legislation nor the federal/provincial agreement act to preclude that nature of conduct, even in the absence of a specific policing contract between the RCMP and the City of Saskatoon." (R v Figley McBeth, 2004 SKPC 119, at para. 34)

"19 A member of the R.C.M.P. could make such a demand anywhere in Canada, as his territorial jurisdiction extends through out Canada under the R.C.M.P. Act, R.S.C. 1970, c. R-9." (R v Soucy, (1975) 23 C.C.C. (2d) 561 (N.B.C.A.) at para. 19)

• Note that this authority is not exclusive authority, but is rather concurrent jurisdiction with any other police force's local jurisdiction.^{Footnote 5}
• Ontario provincial police officers have authority to act anywhere in Ontario:

Statute

"[42.](2) A police officer has authority to act as such throughout Ontario." (Ontario Police Services Act, s.42(2))

Cases

"Section 56 of the Police Act, R.S.O. 1980, c. 381 provides:

Every chief of police, other police officer and constable, except a special constable or a by-law enforcement officer, has authority to act as a constable throughout Ontario.

[Emphasis added by the court] This section alone clothes O.P.P. officers with jurisdiction province-wide". (R v Giancarlo, (1992) 36 M.V.R. (2d) 141 (Ont. C.A.) at para. 4)

• Required to act (or 'have responsibility' to act):
  • A municipal police (e.g. TPS) is required to act within their municipality (e.g. Toronto):

Statute

"4.(1) Every municipality to which this subsection applies shall provide adequate and effective police services in accordance with its needs." (Ontario Police Services Act, s.4(1))

Cases

"[6] Section 19(1) of the Police Services Act, R.S.O. 1990, c. P.15 provides that the Ontario Provincial Police have the responsibility to provide policing services to municipalities, which do not have their own police force. Section 19(1) of the Police Services Act provides that the Ontario Provincial Police have the responsibility to provide policing services to municipalities, which do not have their own police force. Section 19(1) provides:

19.(1) The Ontario Provincial Police have the following responsibilities: 1. Providing police services in respect of the parts of Ontario that do not have municipal police forces other than municipal law enforcement officers.

[7] The City of Toronto has its own police force, and therefore the Ontario Provincial Police do not have the responsibility to provide policing in Toronto." [Emphasis added] (Foster v ADT Security Services Canada Inc., 2006 CarswellOnt 5157 (S.C.J.), affirmed in 2007 ONCA 653)

Please note that being required to act is also not an exclusive jurisdiction. Different police forces could theoretically be required to act in a particular situation.

• "Duty" can be an ambiguous word because it has different meanings in different contexts. Distinguish requirement to act:

"17. (1) In addition to the duties prescribed by the Act, it is the duty of members who are peace officers to: [...] (b) maintain law and order in the Yukon Territory, the Northwest Territories and national parks and such other areas as the Minister may designate;" (RCMP Regulations)

from having general duty to preserve the peace and enforce crime:

"18. It is the duty of members who are peace officers, subject to the orders of the Commissioner,

(a) to perform all duties that are assigned to peace officers in relation to the preservation of the peace, the prevention of crime and of offences against the laws of Canada [...]" (e.g. Royal Canadian Mounted Police Act)

Officers who are working their shift are also said to be "on duty". Because of the possible confusion with respect to the meaning of duty, it will be avoided. This document will instead use the more precise expressions of "do not have authority to act", "have authority to act" (or "have jurisdiction") and "required to act" (or "have responsibility").

2) The impacts of swearing in special constables

The swearing of RCMP officers as special constables has two potentially material impacts:

• The first impact of swearing in RCMP officer as a special constable is that they would be able to enforce the laws of Ontario.
• RCMP officers are peace officers in every part of Canada per s.9 of RCMP Act. However, section 18(a) of the RCMP Act states that RCMP officers are only empowered to enforce federal laws, unless the officer is "employed" in a particular province in which circumstances they may also enforce the provincial laws of that province.

"18. It is the duty of members who are peace officers, subject to the orders of the Commissioner,

(a) to perform all duties that are assigned to peace officers in relation to the preservation of the peace, the prevention of crime and of offences against the laws of Canada and the laws in force in any province in which they may be employed, and the apprehension of criminals and offenders and others who may be lawfully taken into custody;" (RCMP Act, s.18(a))

"[19 ...] It is of interest to note that by s. 18 of the said Act [the Royal Canadian Mounted Police Act], R.C.M.P. constables are restricted in enforcing the laws in force in any province in that they are given jurisdiction only in relation to provincial laws of the province in which they are employed." (R v Soucy, (1975) 23 C.C.C. (2d) 561 (N.B.C.A.)

"[10 ...] This court notes that when there is a limitation on their duties it is clearly stated. For example, section 18 of The Royal Canadian Mounted Police Act limits the Royal Canadian Mounted Police to enforcing only the provincial laws of the province in which they are employed." R v Abrametz, (2000) 7 MVR (4th) 133 (Sask Prov. Ct.)

• We understand that "employed" in this context does not mean an employer-employee relationship. Rather, "in which they are employed" means only a province with which the RCMP has an "arrangement" under section 20 of the RCMP Act^{Footnote 6}:

"Arrangements with provinces

20. (1) The Minister may, with the approval of the Governor in Council, enter into an arrangement with the government of any province for the use or employment of the Force, or any portion thereof, in aiding the administration of justice in the province and in carrying into effect the laws in force therein.

Arrangements with municipalities

(2) The Minister may, with the approval of the Governor in Council and the lieutenant governor in council of any province, enter into an arrangement with any municipality in the province for the use or employment of the Force, or any portion thereof, in aiding the administration of justice in the municipality and in carrying into effect the laws in force therein." (RCMP Act)

• The RCMP does not have an arrangement pursuant to section 20 with Ontario (in contrast to the arrangement the RCMP has with Alberta or Saskatchewan, for example). Therefore, RCMP officers are not "employed" in Ontario and do not have the authority to enforce provincial laws in Ontario.
• Swearing RCMP officers in as special constables under section 53 of Ontario's Police Services Act empowers RCMP officers with the additional authority to enforce Ontario's provincial laws.

"Appointment of special constables

By board

53. (1) With the Solicitor General's approval, a board may appoint a special constable to act for the period, area and purpose that the board considers expedient. R.S.O. 1990, c. P.15, s. 53 (1); 1997, c. 8, s. 33 (1).

By Commissioner

(2) With the Solicitor General's approval, the Commissioner may appoint a special constable to act for the period, area and purpose that the Commissioner considers expedient. R.S.O. 1990, c. P.15, s. 53 (2); 1997, c. 8, s. 33 (2).

Powers of police officer

(3) The appointment of a special constable may confer on him or her the powers of a police officer, to the extent and for the specific purpose set out in the appointment." (Police Services Act)

• Depending on the particular details of the appointment, section 53(3) of the Police Services Act can confer on the special constable the power to enforce provincial laws:

"48 Pursuant to the Police Services Act, R.S.O. 1990, c.P15, a police services board may appoint special constables. The power to appoint is provided for in section 53(1) of the Act. Section 53(3) of the Police Services Act provides that "the appointment of a special constable may confer on him or her, the powers of a police officer, to the extent and for the specific purposes set out in the appointment". Section 30 of the Agreement between the Police Services Board and the Toronto Transit Commission dated May 9, 1997, confers on the special constables the powers of a police officer to enforce a certain number of statutes that are listed in that section of the Agreement. Suffice it to say that these powers extend, among others, to the Trespass to Property Act, and to sections 146 and 149 of the Provincial Offences Act. Therefore, when reading the Trespass to Property Act as well as the provisions of the Provincial Offences Act that allow a police officer to make an arrest pursuant to the Provincial Offences Act, special constables of the TTC have the powers of a police officer." (Ye v Toronto Transit Commission, 2009 CarswellOnt 8512 (S.C.J.))

• In addition to any limitations stipulated in the appointment of RCMP officers pursuant to section 53(1) of the Police Services Act, the terms of deployment of RCMP to another police service (and vice versa) are typically expressed in a memorandum of understanding or agreement including whose command, legislation, policy and operational guidelines such deployed personnel will be subject to.
• Note that swearing in as a special constable is different than being appointed under the Interprovincial Policing Act. These are different legislative schemes, both of which confer the powers of a police officer in Ontario. However, RCMP officers are explicitly excluded from being appointed under the Interprovincial Policing Act:

"Definitions

1. In this Act, [...]"extra-provincial police officer" means a police officer appointed or employed under the law of another province or a territory, but does not include a member of the Royal Canadian Mounted Police;

[...]

Appointment

8. (1) The appointing official may make the requested appointment if he or she is of the opinion that it is appropriate in the circumstances for the extra-provincial police officer to be appointed as a police officer in Ontario." (Interprovincial Policing Act)

• The second impact of swearing in an RCMP officer as a special constable, is that the RCMP officer would become subject to the limited discipline set out for Ontario special constables. A special constable is not subject to the full discipline of a police officer under the Ontario Police Services Act. This is because of a combination of the PSA's definition of "police officer" and the scope of application of this statute's misconduct provisions per s.80.
• The PSA defines a "police officer" as excluding special constables.

"Definitions

2 (1) In this Act, [...]

"police officer" means a chief of police or any other police officer, including a person who is appointed as a police officer under the Interprovincial Policing Act, 2009, but does not include a special constable, a First Nations Constable, a municipal law enforcement officer or an auxiliary member of a police force;" [Emphasis added] (Ontario Police Services Act, s.2)

• The PSA states that only a "police officer" can be guilty of misconduct.

"Misconduct

80. (1) A police officer is guilty of misconduct if he or she [...]"

• The only discipline to which special constables are subject is much more general. It is contained in PSA s.25

"Actions taken, auxiliary member, special constable, municipal law enforcement officer

(4.1) If the Commission concludes, after a hearing, that an auxiliary member of a police force, a special constable or a municipal law enforcement officer is not performing or is incapable of performing the duties of his or her position in a satisfactory manner, it may direct that,

(a) the person be demoted as the Commission specifies, permanently or for a specified period;
(b) the person be dismissed;
(c) the person be retired, if the person is entitled to retire; or
(d) the person's appointment be suspended or revoked." [Emphasis added] (Ontario Police Services Act (s.25(4.1))

• Therefore RCMP officers sworn in as special constables would be subject to facing a hearing and potentially having their special constable status revoked, thus returning the officer to the RCMP to consider other discipline as the employer.

3) Inter-Police Cooperation

The Canadian model of policing with federal, provincial and municipal police forces that (Quebec aside) share the same common law police powers and duties, as codified or varied by statutory authority, not surprisingly leaves some grey division lines between areas of exclusive versus concurrent jurisdiction and responsibility. This may be unavoidable, Canada's constitutional fulcrum lying as it does somewhere between Britain's federally centred policing authority and the U.S. (by virtue of U.S. constitutional law) state centred policing authority.

In a nutshell, the provincial power over the administration of justice under s.92(14) of the Constitution Act, 1982 includes the provision of police services. Ontario established a provincial police force and certain municipal police forces (like the TPS) which can enforce the federal Criminal Code, provincial statutes and municipal by-laws. Federally, Canada has established a federal police force, the RCMP, which can police all federal statutes passed under various s. 91 heads of power, including offences under the Criminal Code. Only in those provinces where the RCMP is under contract to provide provincial or municipal police services (not Ontario or Quebec), is the RCMP authorized to enforce provincial statutes or municipal by-laws.

As a practical matter this means that large scale international events, and in this particular case the G20 Summit involving IPPs, necessarily entail consultation and cooperation between different levels of police forces. This means joint planning and collaboration on security arrangements in advance of such events and joint command structures and understandings in place to maintain overall security and to manage specific incidents during the event.

Depending on respective sources of jurisdiction and responsibility, one policy agency may take the lead and another play a supporting role, but they typically refer to each other as "partner agencies" or "security partners". This reflects mutual respect and a common purpose to maintain the peace and protect life and property during a highly charged international summit, always having regard to the Charter's guarantee of freedom of expression and other rights and liberties.

The SCO Document and the C² Document leave no doubt that much planning and effort went into ensuring the security for the proper function of the G20, even if on relatively short notice, but in the end the G20 Summit security command structures and the roles of the RCMP and the TPS were premised on these basic understandings:

• Neither police force relinquished their respective authority or responsibility;
• Whilst the RCMP had primary responsibility to ensure the security for the proper functioning of the G20 Summit, this was not exclusive responsibility
• And whilst the TPS remained the police force of jurisdiction for the City of Toronto before, during, and after the G20 Summit, they were assisted in meeting the increased demands of the Summit by deployment of RCMP and other police forces
• No express Memorandum of Understanding (MOU) was signed between the RCMP and TPS governing the period of the G20 Summit
• No formal "arrangements" within the meaning of s. 10.1(4) of the FMIOA were made between the federal Minister of Public Safety and Emergency Preparedness, with the approval of Cabinet, and the Ontario government to facilitate consultation and cooperation between the RCMP and TPS re performance of duties assigned to peace officers in relation to s. 2 offences under the FMIOA .

Indeed as close to the June 26-27 Summit dates as June 11, the Deputy Minister of Public Safety (Canada) wrote the Deputy Minister of Community Safety (Ontario) to recognize the consultation and cooperation between all provincial and municipal security partners with the RCMP:

"Thank you for your correspondence of May 7, 2010, in relation to the Foreign Missions and International Organizations Act (FMIOA).

Consultation and cooperation between all security partners is, of course, critical for the success of the upcoming G8 and G20 Summits. Extensive security planning has taken place over the past year and a half. As a result, security preparation efforts are well-advanced and have been tested through several formal exercises amongst the security partners. Implementation of the integrated security plan by the respective police agencies will soon take place as the Summits are unfolding shortly.

I understand that, after further assessment and extensive discussions amongst officials and security partners, it was agreed that a separate FMIOA arrangements is not required for the Summits as it would not grant further authorities to local police of jurisdiction. In addition, it was also concluded that the current suite of powers and authorities that peace officers possess at common law or by virtue of any other federal or provincial Act or regulation were sufficient for the G8 and G20 Summits. Furthermore, the premise of the FMIOA provision, upon which a separate arrangement could be based, is to facilitate consultation and cooperation between the Royal Canadian Mounted Police and provincial and municipal police forces and such consultation and cooperation is already well advanced.

To date, the support and efforts demonstrated by provincial and municipal security partners have been outstanding. The Government of Canada looks forward to continued excellent cooperation with Ontario in securing and ensuring the success of the upcoming Summit."

4) Doctrine of Paramountcy and Interjurisdictional Immunity

(a) Paramountcy doctrine

The Constitution Act, 1867, divides legislative powers between the federal (s.91) and provincial (s.92) governments. This division of powers can be imprecise, resulting in overlapping federal and provincial legislation.

Assuming that both of the overlapping laws are within the competence of their respective legislators, when the overlapping laws are inconsistent determining which law applies is often resolved with the doctrine of "federal paramountcy". This doctrine states that the federal law will prevail^{Footnote 7}.

Most recently the Supreme Court of Canada in Canada (Attorney General) v. PHS Community Services Society^{Footnote 8} stated:

[70] In summary, the doctrine of interjurisdictional immunity is narrow. Its premise of fixed watertight cores is in tension with the evolution of Canadian constitutional interpretation towards the more flexible concepts of double aspect and cooperative federalism. To apply it here would disturb settled competencies and introduce uncertainties for new ones.

[71] In the case of a conflict between a federal law and a provincial law, the doctrine of paramountcy means that the federal law prevails to the extent of the inconsistency: Canadian Western Bank,at para. 69. ... The doctrine of federal paramountcy applies when there is operational conflict between a federal and provincial law, or when a provincial law would frustrate the purpose of a federal law.

Determining inconsistency between laws

The most obvious example of an inconsistency between laws is where both laws cannot be complied with^{Footnote 9}. For example, if a provincial law allocated exclusive responsibility over a subject to one authority, and federal law allocated exclusive responsibility over the same subject, to a different authority, there would be an inconsistency. On the other hand, if one level of government legislates a standard, and the other government legislates a higher standard, meeting the higher standard also meets the lower standard, and the laws are not inconsistent.

A more subtle example of an inconsistency is where overlapping laws can both technically be complied with, but that such compliance would "frustrate the purpose" of the federal law^{Footnote 10}. In one case^{Footnote 11}, the federal government legislated that a person could be represented by a lawyer or a non-lawyer before a particular tribunal. The provincial legal legislation prohibited non-lawyers from representing a person before any tribunals. Both laws could be complied with by having a lawyer represent the party. The court found that while dual compliance was possible, some of the purposes of the federal Act were to make the tribunal more informal, accessible and speedy. Using only lawyers before the tribunal would defeat these purposes. The provincial law was therefore inconsistent with the federal law.

Provincial law is inoperative to the extent of the inconsistency

To resolve the inconsistency, federal paramountcy makes the provincial law inoperative. This means that the provincial law does not govern the topic that is the subject of overlapping laws. Non-compliance with the provincial law has no effect, whereas non-compliance with the federal law has its usual full effect.

It is important to note that provincial law is affected only insofar as it is inconsistent with the federal law^{Footnote 12}. This may mean the effect is quite narrow, such that a particular section of provincial law is inoperative for so long as the federal law is not repealed.

(b) Alternative solution: Interjurisdictional Immunity

The doctrine of interjurisdictional immunity means that one level of government cannot legislate in a way that impairs the "basic, minimum and unassailable content"^{Footnote 13} of a subject which s.91 allocates to the federal government^{Footnote 14}, even when the legislation in general is constitutional.

While provincial governments have the constitutional power to legislate generally regarding subjects under s.92(13) (property and civil rights), that constitutional power cannot hinder federal constitutional powers. In the past this doctrine has meant that provincial laws requiring protective reassignment of pregnant workers did not apply to an interprovincial telephone company^{Footnote 15}, and that provincial labour laws have been inapplicable to postal workers^{Footnote 16}.

This doctrine is discussed by the Supreme Court of Canada in PHS Community Services Society (released September 30, 2011)^{Footnote 17} and, described as having been narrowed, though not abolished, by recent jurisprudence, in favour of the "emergent practice of cooperative federalism, which increasingly features interlocking federal and provincial legislative schemes." The Chief Justice for a unanimous Court writes:

[58] The doctrine of interjurisdictional immunity is premised on the idea that there is a "basic, minimum and unassailable content" to the heads of powers in ss. 91 and 92 of the Constitution Act, 1867 that must be protected from impairment by the other level of government: Bell Canada v. Quebec (Commission de la santé et de la sécurité du travail), [1988] 1 S.C.R. 749,at p. 839.  In cases where interjurisdictional immunity is found to apply, the law enacted by the other level of government remains valid, but has no application with regard to the identified "core".

[59] It is not necessary to show that there is a conflict between the laws adopted by the two levels of government for interjurisdictional immunity to apply: Quebec (Attorney General) v. Canadian Owners and Pilots Association, 2010 SCC 39, [2010] 2 S.C.R. 536, at para. 52 ("COPA"). Indeed, it is not even necessary for the government benefiting from the immunity to be exercising its exclusive authority: Canadian Western Bank, at para. 34.

[61] Recent jurisprudence has tended to confine the doctrine of interjurisdictional immunity. In Canadian Western Bank, the majority stated that "although the doctrine of interjurisdictional immunity has a proper part to play in appropriate circumstances, we intend now to make it clear that the Court does not favour an intensive reliance on the doctrine, nor should we accept the invitation of the appellants to turn it into a doctrine of first recourse in a division of powers dispute" (para. 47). More recently, in COPA, the majority held that the doctrine "has not been removed from the federalism analysis", but rather remains "in a form constrained by principle and precedent" (para. 58).

[62] This caution reflects three related concerns. First, the doctrine of interjurisdictional immunity is in tension with the dominant approach that permits concurrent federal and provincial legislation with respect to a matter, provided the legislation is directed at a legitimate federal or provincial aspect, as the case may be. This model of federalism recognizes that in practice there is significant overlap between the federal and provincial areas of jurisdiction, and provides that both governments should be permitted to legislate for their own valid purposes in these areas of overlap.

[63] Second, the doctrine is in tension with the emergent practice of cooperative federalism, which increasingly features interlocking federal and provincial legislative schemes. In the spirit of cooperative federalism, courts "should avoid blocking the application of measures which are taken to be enacted in furtherance of the public interest": Canadian Western Bank, at para. 37. Where possible, courts should allow both levels of government to jointly regulate areas that fall within their jurisdiction: Canadian Western Bank, at para 37.

[64] Third, the doctrine of interjurisdictional immunity may overshoot the federal or provincial power in which it is grounded and create legislative "no go" zones where neither level of government regulates. Since it is not necessary for the government benefiting from the immunity to actually regulate in the field in question, extension of the doctrine of interjurisdictional immunity risks creating "legal vacuums": Canadian Western Bank,at para. 44.

[65] While the doctrine of interjurisdictional immunity has been narrowed, it has not been abolished. Predictability, important to the proper functioning of the division of powers, requires recognition of previously established exclusive cores of power: Canadian Western Bank,at paras. 23-24. Nor, in principle, is the doctrine confined to federal powers: Canadian Western Bank. However, in areas of overlapping jurisdiction, the modern trend is to strike a balance between the federal and provincial governments, through the application of pith and substance analysis and a restrained application of federal paramountcy. Therefore, before applying the doctrine of interjurisdictional immunity in a new area, courts should ask whether the constitutional issue can be resolved on some other basis.

B. Issues

The Commission seeks a legal opinion with respect to the following questions:

To what extent are RCMP members (including those sworn as Ontario Special Constables) authorized and/or required to exercise police powers within each of the controlled access zone, restricted access zone, interdiction zone and outside area? To what extent are RCMP members authorized and required to direct local police within those zones?

a) RCMP authority or requirement to act in different zones

Text Version

RCMP authority and requirement to act at Toronto G20

The RCMP authority and requirement to act at Toronto G20 diagram is a pictorial depiction composed of concentric circles representing the RCMP responsibility to act within each of the Controlled Access Zone, Restricted Access Zone, Interdiction Zone and Outer Zone as identified in connection with the 2010 G20 Summit in Toronto. The innermost circle represents the Controlled Access Zone, while the next innermost circle represents the Restricted Access Zone. The depiction indicates that in both zones, the RCMP was authorized and required to act pursuant to subsection 10.1(1) of the Foreign Missions and International Organizations Act and subsection 6(1) of the Security Offences Act.

The two outermost concentric circles represent the Interdiction and Outer Zones respectively. The depiction indicates that in both zones, the RCMP was authorized to act pursuant to section 9 of the RCMP Act but, pursuant to subsection 4(1) of Ontario’s Police Services Act, was not required to do so.

1. TPS retained their municipal policing responsibilities as the police force of jurisdiction.
2. RCMP retained their authority and primary responsibility with respect to ensuring the security for the proper functioning of the G20 Summit and protection of IPPs. Therefore, if some threat to the security of the Summit or to IPPs had manifested in the IZ or OZ, the RCMP would equally be required to act in the IZ or OZ to address that threat, even though the threat was outside the RAZ and CAZ.

(i) Key Document Statements

C² Document – Federal Responsibility and RCMP

The ISU-GIS 2010 Summits Command and Control (C²) Document is the 'capstone document' for command and control for the G20 Summit dated March 25, 2010, but finally signed as amended by all Integrated Security Unit (ISU) partner agencies on June 3, 2010.

The C²2 Document outlines the role of the RCMP at the G20 Summit as follows:

"...the RCMP is responsible for overseeing security planning and operations as well as the coordination of operational security requirements with federal, provincial and municipal law enforcement agencies.

The RCMP, as the lead security agency, is mandated to provide protection to the visiting IPPs and security of the Sites. The RCMP will also provide support assistance to its policing partners. These services will be provided under the direction of the UCC Incident Commander. If a critical incident or terrorist activity occurs during the G8 or G20 Summit that would constitute a threat to the security of Canada or to an IPP, the UCC will ensure that immediate actions are taken to safeguard life and property.

In accordance with the Security Offences Act, the RCMP will be responsible for the operational resolution of the incident subject to the policy direction of the Government of Canada. The RCMP will also ensure, through the appropriate Government agencies/departments/services, that the National Counter Terrorism Plan is implemented.

The RCMP will ensure the democratic right of individuals to demonstrate peacefully while maintaining proper security. "

"As the Commanding Officer of the leading agency, the Royal Canadian Mounted Police (RCMP) Commission retains overall responsibility for the 2010 G8 and G20 Summits and is responsible to the Government of Canada for the security and operations of the Summits.

SCO Document – RCMP Authority

The Strategic Concept of Operations G20 Summit June 26-27, 2010 document (SCO Document), prepared by the RCMP as an internal strategic planning guide to facilitate more detailed planning of the key security functions, does not appear to have been the subject of any specific agreement with partner agencies and, as such, has no express bearing on the question of RCMP and TPS authority or requirement to act in the various zones.

However, as a matter of internal record in advance of the Summit, it provides:

"The RCMP is Canada's national police service, and the sole agency with federal policing jurisdiction. The RCMP derives its authority from the RCMP Act, and takes direction from the Minister of Public Safety. The RCMP is mandated to provide security and to ensure the safety of Canadian dignitaries, Internationally Protected Persons (IPPs), designated sites, and Major Events.

The RCMP has been tasked as the lead agency responsible for the security of the G8 Summit. The knowledge and practices relevant to safeguarding visiting heads of state and foreign diplomats resides with the RCMP's Protective Policing Branch. 'O' Division has the responsibility of delivering the operational requirements for the G8 Security."

And further that:

"The RCMP is the lead and supported agency for Security of the Summit. RCMP will work in close partnership with federal partners and police services of jurisdiction within the province."

"The RCMP is responsible for the security and movement of Internationally Protected Personnel (IPP)."

"The RCMP will establish Controlled Access Zones (CAZ) in relation to venues and as required. The RCMP will establish Controlled Access Zones (CAZ) in relation to venues and as required. The RCMP will direct the establishment of additional security zones to be policed by supporting security partners as required."

(ii) Where the RCMP were authorized to act

1. RCMP officers are peace officers in every part of Canada (RCMP Act s.9).
2. RCMP are authorized to exercise all common law and statutory powers of peace officers with respect to enforcing federal laws across Canada^{Footnote 18}, including all zones in Toronto during the G20.
3. However, unless appointed as Special Constables in Ontario RCMP officers would not be authorized to enforce provincial laws in any zone because the RCMP is not employed in Ontario^{Footnote 19}.
4. Depending on the details of appointment as a special constable, RCMP officers could have been authorized to enforce provincial laws in any or all zones by virtue of appointment as special constables and the powers thereby conferred under s. 53(3) of the Police Services Act. We understand though that RCMP were only deployed as special constables during the pre-Summit period of June 20-23, 2010, and prior to the security perimeter coming into effect on June 25.

(iii) Where the RCMP were required to act

• The RCMP is not responsible for enforcing all laws across Canada because the provinces have the power to establish provincial and municipal police forces responsible for enforcing provincial laws and municipal by-laws (Constitution Act 1867, s.92(14)).

See also the a contrario implication from Royal Canadian Mounted Police Regulations sections 17(1)(a) and (b):

"17. (1) In addition to the duties prescribed by the Act, it is the duty of members who are peace officers to [...]

(b) maintain law and order in the Yukon Territory, the Northwest Territories and national parks and such other areas as the Minister may designate;

(c) maintain law and order in those provinces and municipalities with which the Minister has entered into an arrangement under section 20 of the Act and carry out such other duties as may be specified in those arrangements;"

• The RCMP had primary responsibility to ensure the security for the proper functioning of the Summit per FMIOA s.10.1(1)

"10.1 (1) The Royal Canadian Mounted Police has the primary responsibility to ensure the security for the proper functioning of any intergovernmental conference in which two or more states participate, that is attended by persons granted privileges and immunities under this Act and to which an order made or continued under this Act applies."

• The RCMP were also required (had primary responsibility) to protect IPPs per Security Offences Act s.6(1):

"6. (1) Members of the Royal Canadian Mounted Police who are peace officers have the primary responsibility to perform the duties that are assigned to peace officers in relation to any offence [where the victim is an IPP] referred to in section 2 or the apprehension of the commission of such an offence."

• The RCMP is also required to protect IPPs pursuant to the Royal Canadian Mounted Police Regulations section 17(1)(f)(i):

"17. (1) In addition to the duties prescribed by the Act, it is the duty of members who are peace officers to [...]

(f) protect, within Canada, whether or not there is an imminent threat to their security,

(i) any person who qualifies under the definition "internationally protected person" in section 2 of the Criminal Code,"...

• The strategic planning assumption was that controlling the RAZ and CAZ were necessary to ensure security for the proper functioning of summit and to protect IPPs.
• Having so identified the key geographical zones central to the RCMP's primary responsibility under the Security Offences Act and FMIOA, the RCMP were required to control and act in the CAZ and RAZ^{Footnote 20}.
• It bears emphasis that the requirement to act imposed by section 10.1 of the FMIOA, section 6 of the Security Offences Act and section 17(1)(f)(i) of the RCMP Regulations pertains to subject matter, rather than any arbitrary geographical limitation. Thus, if some threat to the security of the Summit or to IPPs had manifested in the IZ or OZ, the RCMP would equally be required to act in the IZ or OZ to address that threat, even though the threat was outside the RAZ and CAZ.
• Hypothetically, the RCMP's primary responsibility could require them to act somewhere far from the summit site. For example, if the RCMP knew that someone in another province was orchestrating an attack on the summit, the RCMP would be required to act against that person in the other province.
• To this extent, the scope of the RCMP's primary responsibility to act is geographically elastic — it depends on the RCMP's risk assessments and strategic judgment as to what appropriate measures, including establishing fenced zones, are reasonably necessary in the circumstances.

b) RCMP required or authorized to direct local police

Text Version

RCMP authority and requirement to direct local police at Toronto G20

The RCMP authority and requirement to direct local police at Toronto G20 diagram is a pictorial depiction composed of concentric circles representing the RCMP’s authority within each of the Controlled Access Zone, Restricted Access Zone, Interdiction Zone and Outer Zone as identified in connection with the 2010 G20 Summit in Toronto. The innermost circle represents the Controlled Access Zone, while the next innermost circle represents the Restricted Access Zone. The depiction indicates that in both zones, the RCMP was authorized and required to direct local police only with their agreement pursuant to subsection 10.1(1) of the Foreign Missions and International Organizations Act, subsection 6(1) of the Security Offences Act, and the Command and Control Document.

The two outermost concentric circles represent the Interdiction and Outer Zones respectively. The depiction indicates that in both zones, the RCMP was not authorized to direct local police, pursuant to subsection 4(1) of Ontario's Police Services Act and the Command and Control Document.

(i) Key Document Statements

As a general proposition, while Canada's federal and provincial police forces have separate sources of authority and requirements to act which may overlap geographically or subject matter wise (eg. enforcement of Criminal Code), one police force does not have the power to direct another police force. Accordingly, inter-police work is a matter of cooperation and agreement.

• The police forces in question recognized the importance of cooperation, and created the RCMP-led ISU and approved the C² Document which lays out the relative responsibilities.
• The police forces recognized the RCMP's lead responsibility in the CAZ and RAZ^{Footnote 21}, particularly via the C² Document.
• Based on the C² Document, it is apparent that the RCMP regarded itself as not only authorized but required to direct other police forces assigned to the RAZ and CAZ for purposes of G20 security or protection of IPPs. Likewise, the TPS as local police force partner agreed to the command authority established for the RCMP zones (CAZ and RAZ) and the TPS zones (IZ and OZ) and thereby agreed to follow RCMP directions in the RAZ and CAZ (subject to the limits of law, including the regulation-based codes of conduct).
• What is not clear is whether the FMIOA or Security Offences Act provisions assigning "primary responsibility" on the RCMP confers any statutory authority or requirement to direct other police forces who may have secondary responsibilities in the locality of a summit. Absent express statutory language and intra vires legislative competence, we do not believe so. This leaves only the general obligation of police forces to cooperate and the specific C² Document intended to integrate the work of all key security partners as the source of RCMP authority and requirement to direct local police.
• As we question whether the C² Document is legally enforceable by any signatory, the authority and requirements of the RCMP to direct local police in the CAZ and RAZ rests on a cooperative agreement only.
• Significantly, ss. 1.3 of the C² Document expressly provides that each police service (provincial, regional, municipal) will retain their responsibilities as police force of jurisdiction.

(ii) RCMP's primary responsibility and required leadership role

• Protection of IPPs and securing international summits, because of international nature, is constitutionally federal jurisdiction (Security Offences Act s. 6, Royal Canadian Mounted Police Regulations s.17(1)(f)(i), and FMIOA s.10.1).
• FMIOA and Security Offences Act give the RCMP "primary responsibility" for protecting IPPs and ensuring security for the proper functioning of international summits.
• The addition of the word "primary" is significant, and requires the RCMP to play a leadership role with respect to their areas of "primary responsibility", which the RCMP did assume^{Footnote 22}.
• There has been no judicial consideration of either the FMIOA s.10.1 (introduced in 2001 amendments to this Act) or the Security Offences Act s.6 (introduced in 1984). This means there is no judicial assistance in interpreting "primary responsibility" and what that means for joint police operations.
• A survey of Hansard recording statements in the House of Commons as well as Minutes of the Standing Committee of Foreign Affairs and International Trade in October-November 2001 and February 2002 indicate the legislative view that codifying the RCMP's role for assuming primary responsibility simply clarified the lead (but not sole) responsibility of the RCMP for security at such international events but that consultation, co-operation and collaboration with local police would continue as in the past.

...primary responsibility of the RCMP does not suggest that the Royal Canadian Mounted Police will now be solely responsible for security at international events.

The amendments also accurately reflect the practical arrangements between the RCMP and the local police, either provincial, local or regional, in sharing responsibilities for security measures.

As in the past, the RCMP would continue to share responsibility with the police forces of local jurisdictions and would continue to consult and co-operate with each police force to determine who will be responsible for specific activities.^{Footnote 23}

As in the past, the RCMP will continue to work in close partnership with provincial and municipal police forces in providing security for the events.^{Footnote 24}

With reference to your concern here, primacy doesn't go to sole ownership of the problem. We recognize there's a requirement for partnership, because there are local police responsibilities.

Within the very inner circle would be the protection of the internationally protected person, for which the RCMP is responsible. That event, though, is going to be surrounded by a series of other events that occur, which can require, maybe, public unrest or mischief charges, assault charges—things that occur on the streets surrounding an event. Those in fact would be handled by the local police of primary jurisdiction; they will handle those particular events.

I've indicated it wouldn't change how that duty is actually currently performed, which is in collaboration with our partners.

But clearly, in other areas, we work in partnership because there are different activities that have to be played out by different forces. They have primary jurisdiction for something that occurs outside the perimeter around an event^{Footnote 25}

The RCMP takes the lead in providing security and close consultation and collaboration with municipal and provincial police at all levels.^{Footnote 26}

The RCMP always had the final say in respect of protection of internationally protected people, IPP. At these sites, there are zones. The inner zone is the IPP and that is the primary responsibility for which the RCMP has the lead. The other areas or zones that extend out from the site would reflect dialogue with the other police jurisdictions.^{Footnote 27}

• In summary, Parliament appears to have intended the use of the word "primary"^{Footnote 28} to create lead responsibiliity in the RCMP but "primary responsibility" contemplates there being other entities with "secondary responsibility" in ensuring the security for the proper functioning of the summit, and in protecting IPPs. These entities with a lesser degree of responsibility were intended to be other police forces, including the police force of local jurisdiction.
• Conceivably an international summit could be held on federal lands at an airport where the IPPs and delegates stayed at airport hotels and met at an airport conference centre, leaving the RCMP with complete federal jurisdiction to undertake security. Likewise, in a province where the RCMP are under contract to provide provincial and municipal policing, the RCMP could have full control of policing at an event site. However, this was not the case for the G20, and, invariably, such summits will involve cooperation with the police force of local jurisdiction and others.

(iii) Police forces have an obligation to cooperate

There is some authority for the principle that police forces have a professional obligation to cooperate.

• The police have an obligation to take proper and reasonable steps in the prevention of harm to IPPs in an international visit, per R v Knowlton, [1974] S.C.R. 443 at 447:

According to the principles which, for the preservation of peace and prevention of crime, underlie the provisions of s. 30, amongst others, of the Criminal Code, these official authorities were not only entitled but in duty bound, as peace officers, to prevent a renewal of a like criminal assault on the person of Premier Kosygin during his official visit in Canada. In this respect, they had a specific and binding obligation to take proper and reasonable steps. The restriction of the right of free access of the public to public streets, at the strategic point mentioned above, was one of the steps—not an unusual one—which police authorities considered and adopted as necessary for the attainment of the purpose aforesaid. In my opinion, such conduct of the police was clearly falling within the general scope of the duties imposed upon them.

• Cooperation amongst the various police forces in the area is likely such a proper and reasonable step.
• Moreover, Ontario's municipal police forces, such as TPS, are required to be "adequate and effective", including in offering Public Order maintenance (Ontario Police Services Act, s.4).
• Effective police forces will cooperate rather than getting in each other's way or acting at cross purposes.
• The concept of a duty to cooperate does not have express definition under statutory or common law and so any evaluation of the nature and extent of such an obligation, by a local police force in support of a federal police force having primary responsibility, would depend on what was reasonable in the circumstances. Factors, in the context of a request by the RCMP to the TPS to cooperate in devising and implementing a security plan for the G20 Summit, we expect would include: the overall policing needs for the Summit, the relative resource capacity of the RCMP and TPS, identified gaps in the authority or responsibility of the RCMP to meet the overall security plan needs, and competing core demands on TPS. The extent of the TPS duty to cooperate would not mean, we think, its dropping any other core local policing responsibilities to redirect to Summit policing and might well be conditional upon additional funds being provided federally or provincially to recompense the TPS for mobilizing additional police services for the Summit.
• We emphasize that we do not regard such a duty to cooperate to mean a "duty to follow" the directions of a separate police force - in our view, absent valid and express statutory provisions, a duty to direct or to follow directions as between separate police forces in Canada must be premised on voluntary agreements or undertakings. We note in passing that there was debate in Parliament in 1984 leading to the enactment of the Security Offences Act and creation of CSIS, wherein a motion was brought to amend Bill C-9 to include a positive "duty to consult". The motion which failed would have expressly obliged the RCMP to consult with provincial and municipal police forces in exercising the RCMP's primary responsibility to investigate national security offences.^{Footnote 29}
• There is no statutory bar to police agencies entering into agreements such as memoranda of understanding or the C² Document used in this circumstance to better define and coordinate the mandates, roles and responsibilities for all participating police agencies.

2) To what extent are local police authorized and/or required to exercise police powers within each of the controlled access zone, restricted access zone, interdiction zone and outside area? To what extent are local police authorized and/or required to direct RCMP members (including those sworn as Ontario peace officers) within those zones?

a) Local police forces being authorized or required to act in which zones

Text Version

TPS authority and requirement to act at Toronto G20

The TPS authority and requirement to act at Toronto G20 diagram is a pictorial depiction composed of concentric circles representing the policing authority within each of the Controlled Access Zone, Restricted Access Zone, Interdiction Zone and Outer Zone as identified in connection with the 2010 G20 Summit in Toronto. The innermost circle represents the Controlled Access Zone, while the next innermost circle represents the Restricted Access Zone. The depiction indicates that in both zones, the TPS was authorized and required to act pursuant to subsection 4(1) of Ontario’s Police Services Act and the Command and Control Document. However, the diagram specifies that the TPS was not primarily responsible for those zones.

The two outermost concentric circles represent the Interdiction and Outer Zones respectively. The depiction indicates that in both zones, the TPS was authorized and required to act pursuant to subsection 4(1) of Ontario’s Police Services Act.

1. TPS a provincial partner in RCMP-led Toronto Area Command Centre (TACC) addressing federal level responsibility. TPS led Major Incident Command Centre (MICC) addressing city level responsibility. TPS retained its responsibility for non-G20 policing in the RAZ and CAZ because TPS remained the police force of local jurisdiction.
2. Subject to RCMP primary responsibility with respect to ensuring the security for the proper functioning of G20 Summit and protecting IPPs.

(i) Key Document Statements

C² Document – Provincial Responsibility and TPS

The C² Document outlines the role of the TPS at the G20 Summit as follows:

"The Toronto Police Service (TPS) is the police force of jurisdiction in Toronto. TPS has the responsibility to fulfill its mandated obligations under the 'Police Services Act' of Ontario. Through the ISU, TPS will support the RCMP in its federally legislated mandate. During the G20, TPS will assist in protecting the Internationally Protected Persons (IPP's) and VIP's, as well as ensuring the integrity of the Interdiction Zones (IZ) or outside perimeters of all identified G20 Toronto sites and hotels. TPS will ensure the democratic right of individuals to demonstrate peacefully while maintaining proper security. Additional TPS responsibilities include: crime management, traffic management, public order maintenance, business continuity, prisoner processing and community relations."

"The MICC is the central point of command, control, communication and information for the Toronto Police Service (TPS). The MICC Incident Commander, will have a full perspective of all resources under the Command of the TPS, and tactical control of those resources, in its function of ensuring the integrity of the Interdiction Zones beyond the Restricted Access Zones under the protection of the RCMP. Additionally the MICC will be responsible for the continuity of policing services throughout the City of Toronto and liaising with the City's Emergency Operations Centre (EOC).

SCO Document – TPS Responsibility

As a matter of internal RCMP record the SCO Document acknowledges that:

"TPS is the police service of jurisdiction within the City of Toronto. Through an Integrated Security Unit, TPS will support the RCMP in its federally legislated mandate. TPS has the responsibility to fulfill its mandated obligations under the Police Services Act of Ontario, which include:

• Law enforcement
  • Public Order Maintenance
  • Assistance to Victims of Crime
  • Emergency Response, and
  • Crime Prevention"

(ii) TPS was required to act in all zones regarding policing unrelated to the G20, and required by agreement to act in the OZ and IZ regarding all G20 related policing.

• TPS is authorized and required to act across the city because they are responsible for policing Toronto (Ontario Police Services Act, s.4).
• All zones (RAZ, CAZ, IZ, OZ) are parts of Toronto. TPS remained solely responsible for policing all zones regarding non-G20 matters.
• Under the C² Document, the TPS were also required to act in the IZ and OZ regarding G20 matters. "TPS site commanders will be in tactical control of foot, bicycle, and mobile assets in the IZ, the Path (which runs under both the IZ and OZ) and the OZ, being supported by Public Order Sections, and under the operational direction of the MICC."^{Footnote 30}
• While the TPS remained responsible for policing unrelated to the G20 in the RAZ and CAZ, TPS was required under the C² Document to follow RCMP directions in those two zones when doing G20 related policing.

b) To what extent are local police authorized and/or required to direct RCMP members within those zones?

Text Version

TPS authority and requirement to direct RCMP at Toronto G20

The TPS authority and requirement to direct RCMP at Toronto G20 diagram is a pictorial depiction composed of concentric circles representing the TPS’ authority within each of the Controlled Access Zone, Restricted Access Zone, Interdiction Zone and Outer Zone as identified in connection with the 2010 G20 Summit in Toronto. The innermost circle represents the Controlled Access Zone, while the next innermost circle represents the Restricted Access Zone. The depiction indicates that in both zones, the TPS was not authorized to direct the RCMP due the primary responsibility of the latter pursuant to the Foreign Missions and International Organizations Act, the Security Offences Act, and the Command and Control Document.

The two outermost concentric circles represent the Interdiction and Outer Zones respectively. The depiction indicates that in both zones, the TPS was authorized and required to direct the RCMP only with their agreement, pursuant to the Command and Control Document.

(i) Key Document Statements

• Section 4(1) of the Police Services Act gives TPS responsibility for all policing throughout Toronto. Control of the IZ and OZ was not required to ensure the security of the Summit, therefore the FMIOA does not give the RCMP any general requirement to act in the IZ and OZ. TPS remained responsible for all policing in those two zones.
• The C² document confirms that TPS would control the IZ and OZ, because these were designated as "TPS Sites" and the TPS-led MICC was given jurisdictional command and tactical control of resources in its function of ensuring the integrity of the IZ and OZ.^{Footnote 31} By this agreement, all police forces in the IZ and OZ were required to follow the direction of the TPS (subject to the limits of law, including the regulation-based codes of conduct).
• We note that the C² Document does contemplate that the RCMP support assistance to its police partners would be "provided under the direction of the UCC Incident Commander" but once directed to the IZ and OZ zones, command and control appears to devolve to MICC and the TPS.
• The RCMP's requirement to act, which derived from the FMIOA and the Security Offences Act, is subject matter specific. Therefore a situation could exist where the RCMP was required to be involved in the IZ, OZ or beyond, so as to protect the IPPs or ensure the security for the proper functioning of the summit (e.g. identified aircraft threats or cyber attack). Such a situation would give the RCMP primary responsibility to act wherever the threat arose and would change the allocated responsibilities.

(ii) By agreement, TPS was required to direct RCMP and the RCMP was required to follow directions in IZ and OZ.

• Based on the duty as expressed in R v Knowlton to take reasonable measures in fulfilling their duty, police forces who act in the same theatre must cooperate. The C² Document was consistent with this duty, the express goals of this agreement being to ensure a coordinated effort of forces and resources with a common organizational structure, standardized terminology, a scalable response, integrated timely communications, and a consolidated plan of action, with command and control delivered at the strategic, operational, and tactical levels. The use of such agreements is an appropriate means of ensuring integration of police force capabilities and synchronization of security operations.
• Within each of the controlled access zone, restricted access zone, interdiction zone and outside area, and for both RCMP members (including those sworn as Ontario peace officers) and municipal police officers, does a particular police agency's policy (regarding acceptable standards of conduct) become paramount? Do police officers continue to be bound by the policies of their respective agencies?

(a) Members continue to be bound by their own force's codes of conduct and policies

• Each force's regulatory codes of conduct remained binding on their respective members (including RCMP sworn as Ontario Special Constables) (RCMP: Royal Canadian Mounted Police Regulations 1988, SOR/88-361, ss.37-58.7, Provincial/municipal police: O Reg 268/10, in the schedule).
• This is because there is no authority for something like the agreement in the C² Document or a duty to cooperate, overriding binding regulations which have the force of law.^{Footnote 32}
• The RCMP and TPS signed a MOU dated June 14, 2010 to document the arrangements regarding deployment of RCMP police officers to TPS as Ontario Special Constables. They were made available to support TPS in carrying out traffic central duties and respond to public order incidents prior to the G20 Summit. This MOU was time limited to the dates June 20-23, 2010. Notably at section 5.1 under Terms of Deployment it provided that:

"Deployed personnel shall be subject to the Ontario Police Services Act and TPS policy and operational guidelines, wherever they do not conflict with legislation and procedures governing the deployed personnel...Public complaints and disciplinary matters involving deployed personnel will be processed in the usual course pursuant to the legislation applicable to them."^{Footnote 33}

• There was no similar use of RCMP as Special Constables during the June 26-27 Summit period. If indeed the MOU used for June 20-23 was capable of subordinating RCMP officers to TPS policy and operational guidelines during this temporary appointment, no such subordination of any RCMP members to TPS policy and operational guidelines was agreed to in relation to the G20 Summit itself.
• As a practical matter it may be difficult to clearly distinguish between the code of conduct and terms of employment governing the RCMP member and the applicable policy or operational procedures called for on the ground. To expect RCMP police officers deployed as POUs to take common briefing instructions together with other TPS police officers from TPS command and then conduct the very same police operations shoulder-to-shoulder in the field in support of TPS responsibilities, but somehow identify conflicting procedures and conduct themselves differently, may not be a realistic expectation. This is an issue deserving more consultation and clarity to ensure such expectations are workable.
• Internal police documents such as policy documents or operational manuals must be distinguished from legal instruments like statutes and regulations^{Footnote 34}. These internal documents have little legal significance. Courts have accorded little weight to such when judging if an officer has acted properly^{Footnote 35}. Moreover, these documents cannot affect, interpret or describe the legal authority a peace officer has^{Footnote 36}.
• We find no legal basis, including anything in the C² Document or otherwise, to conclude that one force's policies and operational guidelines would override the other force's policies/procedures in different zones. Therefore, in our view, each force remained bound and guided by their respective policies and operational guidelines irrespective of which zone they were policing in. This means that even those RCMP officers operating as POUs in the IZ or OZ under command and control of the TPS would remain bound by RCMP policy and operational guidelines in the absence of express agreement to the contrary.

4) What impact, if any, does the FMIOA or other relevant federal legislation have within the area designated a public work pursuant to the PWPA?

a) The G20 area was legally identified as a public work

The G20 area was properly designed as a public work at the time of the G20 summit. Regulation 233/10, made under the Public Works Protection Act (PWPA), which designated the area as a public work, was effective at the time of the G20. Pursuant to section 23(2) of Ontario's Legislation Act^{Footnote 37}, the effective date of a regulation is decided in the following manner:

(2) Unless otherwise provided in a regulation or in the Act under which the regulation is made, a regulation is not effective against a person before the earliest of the following times:

1. When the person has actual notice of it.
2. The last instant of the day on which it is published on the e-Laws website.
3. The last instant of the day on which it is published in the print version of The Ontario Gazette.

Although the regulation was only published in the Gazette on July 3, 2010^{Footnote 38}, prior publication on the e-Laws website on June 16, 2010^{Footnote 39} made this regulation effective during the G20 Summit, on June 26 and 27. This means that peace officers had the additional powers conferred by the PWPA with respect to the area set out in regulation 233/10.

b) PWPA does not impact on FMIOA or other relevant federal legislation

Even though the G20 area was validly identified as a public work at the time of the G20 Summit, this did not impact the FMIOA or other federal legislation providing authority and responsibility to the RCMP in relation to their police services during the G20 Summit.

The PWPA was enacted in 1939. It was a wartime measure in response to concerns of sabotage of Ontario's hydroelectric and other facilities.^{Footnote 40} Today the PWPA is seldom used. The main application of the PWPA is with regard to ensuring courthouse security via searches^{Footnote 41}. This use of the PWPA has been upheld as constitutional in relation to a s. 8 Charter challenge of a warrantless search of person entering an Ontario courthouse^{Footnote 42}.

The passing of O Reg 233/10, which designated the G20 area as a public work began with concerns from the City of Toronto Solicitor's office that police may not have legal authority to take the measures required to ensure the integrity of the Interdiction Zone^{Footnote 43}. The Government of Canada and the RCMP were of the opinion that they had sufficient powers under the common law and the Criminal Code^{Footnote 44}. Nonetheless the Chief of the TPS requested the Lieutenant Governor in Council to pass a regulation under the PWPA designating the G20 area as a public work^{Footnote 45}. This request was granted in the form of O Reg 233/10.

The most important part of the PWPA is section 3, which reads:

"3. A guard or peace officer,

• (a) may require any person entering or attempting to enter any public work or any approach thereto to furnish his or her name and address, to identify himself or herself and to state the purpose for which he or she desires to enter the public work, in writing or otherwise;
• (b) may search, without warrant, any person entering or attempting to enter a public work or a vehicle in the charge or under the control of any such person or which has recently been or is suspected of having been in the charge or under the control of any such person or in which any such person is a passenger; and
• (c) may refuse permission to any person to enter a public work and use such force as is necessary to prevent any such person from so entering." [Emphasis added]

The main effect of the PWPA is to confer on peace officers additional powers to stop, search and refuse a person entrance to a public work.

The term "guard" is defined in the Act but not "peace officer". Per s.9 of the RCMP Act, RCMP officers are peace officers in every part of Canada. The PWPA does not expressly limit these additional powers to provincial peace officers although constitutionally this may well be the intra vires limit. If indeed and to the extent this provincial statute is capable of affecting federal peace officers, the PWPAwould do nothing more than confer extra powers on the RCMP to stop, search and refuse a person entrance into a public work.

The FMIOA allocates primary responsibility to the RCMP for the security relating to the proper functioning of the Summit. There is no conflict or interaction between the PWPA and relevant federal legislation, and therefore there is no need to have recourse to doctrines of paramountcy (or interjurisdictional immunity) to resolve an operating inconsistency. Nothing in the PWPA weakens or inhibits the enforcement of federal legislation by the RCMP much less creates any actual conflict.