Commission's Final Report Regarding the Events and the Actions of the RCMP Members Involved in the National Energy Board Hearings in British Columbia

Background

[1] On February 6, 2014, the British Columbia Civil Liberties Association (BCCLA) filed a complaint with the Commission for Public Complaints Against the Royal Canadian Mounted Police (now the Civilian Review and Complaints Commission for the Royal Canadian Mounted Police, hereinafter "the Commission"), concerning the conduct of RCMP members engaged in monitoring, gathering intelligence, and sharing information about various people. These people were seeking to participate in National Energy Board hearings about a proposed pipeline and were engaging in peaceful protests and demonstrations, primarily in British Columbia.

[2] The BCCLA's complaint to the Commission alleged that, based upon documents provided pursuant to an Access to Information Act request, members of the RCMP:

Improperly monitored activities of various persons and groups seeking participation in NEB hearings;
Improperly engaged in covert intelligence gathering and/or infiltration of peaceful organizations; and
Improperly disclosed information concerning persons and groups.

The Commission's Public Interest Investigation and Interim Report

[3] On February 20, 2014, the Commission notified the Minister of Public Safety and the RCMP Commissioner that it would conduct a public interest investigation into the BCCLA's complaint. On June 23, 2017, the Commission issued its Interim Report. This report sets out the full details of the incidents and the subsequent investigation. It should be read in conjunction with this report.

[4] In its Interim Report, the Commission made the following findings:

It was reasonable for the RCMP to provide a visible presence at the National Energy Board hearings.
It was reasonable for the RCMP to monitor the Prince Rupert protest.
It was reasonable for the RCMP to monitor events for the purpose of identifying criminal activity.
The RCMP acted reasonably in monitoring the demonstrations.
It was reasonable to video-record the demonstrations.
As demonstrated by the RCMP's reliance on a closed-circuit surveillance camera policy, the RCMP lacks a clear policy with respect to video-recording public order events such as demonstrations and protests.
It was reasonable for the RCMP to monitor open sources for information about upcoming protests and demonstrations.
The RCMP's current policy on the use of open sources does not provide clear guidance as to the collection, use, and retention of personal information obtained from social media where there is no criminal nexus.
There is insufficient information to support a finding that it was unreasonable to retain the profile and the personal information of Person G.
The RCMP lacks clear policy/guidance as to the use and retention of personal information in circumstances where it is determined that there is no nexus to criminal activity.
It was not unreasonable to conduct open source and internal database checks in the other specific instances reviewed by the Commission.
It was reasonable for the RCMP to attend the workshop and make observations.
It was not unreasonable to collect licence plate numbers for intelligence‑gathering purposes.
The RCMP lacks policy/guidance on the collection, use, and retention of licence plate numbers and associated personal information for intelligence purposes.
It was reasonable for the RCMP to share information about potential threats to energy critical infrastructure with Natural Resources Canada.
The RCMP did not share confidential source information with the National Energy Board.
It was reasonable in the circumstances for the RCMP to share intelligence and threat assessments with the National Energy Board.
It was unreasonable for the RCMP to share the personal information of a protest organizer with the National Energy Board.

With respect to these findings, the Commission made the following recommendations:

That the RCMP consider implementing a specific policy regarding video‑recording protests and demonstrations, setting out criteria and limits for video‑recording protests and demonstrations and for video retention periods.
In particular, that all recordings and images of peaceful protests and demonstrations be destroyed as soon as is practicable.
That the RCMP provide clear policy guidance describing what personal information from social media sites can be collected, the uses that can be made of it, and what steps should be taken to ensure its reliability.
That the RCMP policy require the destruction of records obtained from social media sources containing personal information (such as screen captures of social media sites) once it is determined that there is no criminal nexus regarding the information.
That the RCMP develop a policy providing that where the RCMP obtains personal information that is determined to have no nexus to criminal activity, the information should not be retained.
That the RCMP develop a policy providing that where a licence plate number and any associated personal information has no nexus to criminal activity, the information should not be retained.
That the Kelowna Detachment review all policies concerning the collection, retention and disclosure of personal information and take action to ensure that personal information is disclosed in accordance with legislation and policy.

The RCMP Commissioner's Response

[5] Section 45.76(2) of the Royal Canadian Mounted Police Act (RCMP Act) requires the RCMP Commissioner to provide a written response indicating any further action that has been or will be taken in light of the findings and recommendations contained in the Commission's Interim Report. The RCMP Commissioner must also provide reasons for not acting on any of the findings or recommendations.

[6] On November 20, 2020, the Commission received a response from RCMP Commissioner Brenda Lucki.

[7] At the outset, it should be noted that the Commission recently released its Final Report after Commissioner's Response to Commission's Interim Report Following a Chairperson-Initiated Complaint Investigation into the RCMP's Response to Anti-Shale Gas Protests in Kent County, New Brunswick.^{Footnote 1} When the Commission issued its interim report for that investigation,^{Footnote 2} the Commission included some of the analysis and recommendations from the Interim Report in this case. The RCMP Commissioner's response to the Kent County Interim Report strongly rejected the Commission's recommendations (identical to those in the Interim Report in this case) about limits to the collection and retention of intelligence about protesters from open sources such as social media accounts. The Kent County Final Report reiterated and clarified the Commission's recommendations following a critical analysis of the RCMP Commissioner's response. While some of that analysis is revisited in the next section below, the parties and interested readers should refer to paragraphs 78–105 of the Kent County Final Report for vital context relevant to the Final Report in this case.

[8] In her response to the Interim Report in this case, RCMP Commissioner Lucki agreed with all the Commission's findings, and she supported the Commission's recommendations in nearly all respects.

Recommendation 1: RCMP Commissioner supports developing video policy

[9] The RCMP Commissioner stated that the RCMP was developing policies on policing public assemblies that would include video-recording protests and demonstrations. These policies would refer to the RCMP's existing policies on information management and retention periods. The RCMP Commissioner indicated that she will direct that this new policy, as well as some of the RCMP's existing policies, be amended to provide general criteria on video-recording protests and demonstrations.

Recommendation 2: RCMP Commissioner supports destroying recordings

[10] The RCMP Commissioner stated that the RCMP's policy has been amended such that the retention of recorded media (including video recordings) is managed under its Information Management Manual. The RCMP Commissioner stated that the RCMP will review and confirm current policies to ensure that the recorded media is destroyed as soon as practicable.

Recommendation 3: RCMP Commissioner supports clarity for open source policy

[11] The RCMP Commissioner stated that, although the RCMP now has a policy about using the Internet for criminal investigations and intelligence, a 2020 audit of its open‑source intelligence policy revealed that the policy was not well understood and that compliance was low. The RCMP plans to review and strengthen this policy as well as other policies concerning the collection, storage and retention of personal information obtained from "open-source intelligence" sources such as social media sites.

Recommendation 4: RCMP Commissioner partially supports destruction of social media records

[12] According to the RCMP Commissioner, once records containing personal information (such as social media screen captures) are added to an operational file, existing information management policy dictates the retention period for that information. The RCMP Commissioner stated that the Privacy Act and the Access to Information Act, which govern the collection and disclosure of personal information by federal government agencies, protect that personal information.

[13] With that said, the RCMP Commissioner stated that she had received new information since providing her response to the Kent County Interim Report (including the 2020 audit of open-source intelligence policy and the Kent County Final Report). Therefore, she stated that the RCMP policies on open-source intelligence and information management would be "reviewed and strengthened" in terms of retaining records that were obtained from social media. The RCMP Commissioner indicated that she will direct that Recommendation 4 be implemented as part of that work.

Recommendation 5: RCMP Commissioner supports disposing of personal information

[14] The RCMP Commissioner noted that the RCMP takes its obligation to safeguard personal information seriously. As such, the RCMP Commissioner stated that she would direct that in the context of open-source intelligence for law enforcement or criminal intelligence purposes, the information retention policy would be amended. The RCMP will also develop new policy if needed.

Recommendation 6: RCMP Commissioner supports developing licence plate information policy

[15] According to the RCMP Commissioner, there is some debate about whether licence plate numbers can be considered personal information, and so the issue warrants further consideration. As such, the RCMP will direct that this examination be included with the review of the RCMP's policies under the RCMP's Open Source Intelligence Audit Management Action Plan.

Recommendation 7: RCMP Commissioner supports reviewing policies

[16] Finally, the RCMP Commissioner supported Recommendation 7, that the Kelowna Detachment review all policies concerning the collection, retention and disclosure of personal information and take action to ensure that personal information is disclosed in accordance with legislation and policy. Although many years have passed and many of the RCMP personnel who were at the Kelowna Detachment at the relevant times have moved on, it would be prudent for the Detachment Commander to review these policies. Similarly, the RCMP Commissioner will direct that the "E" Division (British Columbia) RCMP Criminal Operations Officers review these policies as well.

The Commission's Analysis

[17] The Commission welcomes the RCMP Commissioner's support of its recommendations in this case, particularly after her strong rejection, only five months earlier, of the Commission's identical recommendations in the Kent County Interim Report. For clarity and to be consistent with the Kent County Final Report, however, the Commission will modify Recommendation 3 to emphasize the Commission's conviction that clear guidance is needed about the collection, use and retention of personal information obtained from open sources.

A lack of clarity surrounding retention periods

[18] With respect to Recommendations 4 and 5, the Commission is concerned about the lack of clarity and detail in the RCMP Commissioner's response surrounding the relevant retention periods.

[19] In the RCMP Commissioner's response to Recommendation 2, she stated that the RCMP would destroy recorded media (such as videos) of peaceful protests and demonstrations "as soon as practicable." This adopts the language of the Commission's recommendation. The Commission understands "as soon as practicable" to mean expeditiously, or within a reasonably prompt time, while taking the circumstances into account.^{Footnote 3} This provides realistic flexibility while at the same time making it clear that the information is to be quickly destroyed without undue delays—and certainly not held for years as a matter of routine.

[20] However, the Commission made it clear in the Interim Report in this case and in the Kent County Final Report that it also intended Recommendations 4 and 5 to require the destruction of personal information "as soon as practicable," and retained for "no longer than strictly necessary to provide intelligence for the event or purpose for which it was collected."

[21] In the RCMP Commissioner's response, she did not provide any information or clarity about the standard that would be used regarding the destruction of personal information. Although the Commission is encouraged by the RCMP Commissioner's commitment to implement Recommendation 4 (at least in part) and Recommendation 5 as the RCMP reviews, updates, and develops policies concerning the collection, use, and retention of personal information from open sources, some uncertainty remains. Specifically, the RCMP Commissioner's remarks read in context suggest that such personal information might well be retained for as long as required by the RCMP's existing information management policies and under its interpretation of the Privacy Act and the Access to Information Act.

[22] The Commission's understanding of the current approach is that, once an intelligence report has been prepared that contains personal information and/or open‑source intelligence, the RCMP considers it "Operational Information Resources of Business Value" and its policies require that such information be incorporated or linked into the operational file. The RCMP Commissioner has previously stated that RCMP employees are obligated to ensure that all information of business value is incorporated into the RCMP's Records Management Program. All open-source intelligence materials are included as supporting documents. They have the same retention period as the occurrence file itself (which can be many years depending on the nature of the file).

[23] In addition, the RCMP Commissioner wrote in her response to the Kent County Interim Report that the Privacy Act requires that any collection of personal information must be related to a specific operating file or program. As such, all personal information collected from social media posts are incorporated into the police operational file, "like any other piece of information collected during an investigation." The retention period of such personal information is also based on the retention period for that occurrence file, in keeping with RCMP policies on information management.

The Commission reiterates concerns about retaining personal information

[24] The Commission acknowledges that the RCMP Commissioner stated that she had considered the Kent County Final Report and other new information in accepting, or accepting in part, the Commission's recommendations here. The Commission also acknowledges the difficulty of crafting coherent policies for a national organization and the fact that rigid, blanket rules with fixed timelines would likely interfere with legitimate law enforcement and criminal intelligence or national security intelligence objectives. Some flexibility is required as the RCMP decides how to proceed.

[25] Nevertheless, by providing few details and by referring to the RCMP's information management policies and the Privacy Act without specific commitments, the Commission is concerned that the RCMP is maintaining its original position—that is, that the RCMP would retain the personal information of peaceful protesters, demonstrators, and activists for as long as the existing policies require. In other words, for as long as the RCMP sees fit.

[26] In its interim report in this case, the Commission wrote that RCMP policy should direct that personal information "be destroyed as soon as is practicable and in accordance with applicable law once it is determined that there is no criminal nexus or that the information is otherwise no longer necessary for the purposes for which it was collected." For clarity and consistency, the Commission will (as it did in the Kent County Final Report) add this wording when making its final recommendation. For greater certainty, given that the RCMP Commissioner has accepted this recommendation without qualification and has stated that she will direct appropriate policy changes, the Commission understands that under the RCMP's amended policies the records in question will be destroyed "expeditiously" and that they will not routinely languish for years.

The Privacy Act does not prohibit the recommended changes

[27] Again, for consistency and clarity, the Commission reiterates that it does not accept the position (expressed in the RCMP Commissioner's response to the Kent County Interim Report) that the Privacy Act might well prohibit the disposal of personal information where there is no criminal or national security nexus.

[28] Section 6(1) of the Privacy Act states that personal information must be retained for a minimum period of at least two years^{Footnote 4} where it has been used for an "administrative purpose." The Privacy Act states that an administrative purpose, "in relation to the use of personal information about an individual, means the use of that information in a decision making process that directly affects that individual." This is to allow the affected individual reasonable time to obtain access to that information.

[29] In the Commission's analysis, it is unlikely that the use of personal information for generating intelligence products would qualify as an administrative purpose within the meaning of section 6(1) of the Privacy Act. In reality, the individual targeted by the intelligence assessment will almost certainly never know that any assessments were made involving their personal information, let alone be in a position to make a Privacy Act request about it. Furthermore, the overall purpose of the Privacy Act must be kept in mind in this discussion. This legislation was enacted to protect the privacy rights of individuals and to permit them to access and challenge the accuracy of the personal information that government agencies collect about them. Of course, the Privacy Act does not necessarily require the knowledge or consent of the individual whose personal information is collected,^{Footnote 5} nor does an individual always have a right of access in the case of law enforcement investigations.^{Footnote 6} Nevertheless, it appears contrary to the Privacy Act's purpose to invoke this same legislation to justify the secret retention of information that is not required for any law enforcement purpose, where the information was collected when the very individuals the legislation was meant to protect are left unaware.

[30] Moreover, the Privacy Act does not set out mandatory retention times for information gathered during an investigation. Rather, government agencies are responsible for creating personal information banks for different types of information, which then have associated retention times. The existing RCMP Personal Information Bank for Operational Case Records (RCMP PPU 005), which would be that used for most investigational records, sets out a minimum retention time of two years for any collected information. To be clear, the Commission would find a two-year retention time to be unreasonable for the type of information discussed in this report. For that reason, the RCMP may very well need to create a new personal information bank or adjust the retention periods for existing personal information banks to meet the objective of the Commission's recommendations. It would not be appropriate for the RCMP to simply rely on the existing policy as a basis for retaining information for a minimum of two years.

The need to balance privacy and public safety

[31] There are legitimate reasons for the police to collect personal information from open sources, including for criminal and national security intelligence gathering and for investigations into offences.

[32] In the particular case of open-source intelligence gathering, however, the police may profile individuals for intelligence purposes without any suspicion that they intend to engage in criminal activity, or even that they have relevant information about a potential offence. They may only come to the police's attention because they have exercised their rights to freedom of expression and freedom of association. This is extremely concerning. Canadians have the right to expect that the police will not retain their personal information simply for engaging in peaceful protest.

[33] Of course, as explored in the Interim Report, the police have a legitimate interest in gathering intelligence to conduct risk assessments ahead of protests and demonstrations, and to establish a presence at such public order events to keep the peace. Not all protests are peaceful, and acts of violence threaten public safety and actually interfere with the exercise of the right of freedom of expression by peaceful protesters. It is reasonable for the police to assess the risk that some individuals might plan to disrupt an otherwise peaceful protest or demonstration with acts of violence. In that case, a criminal investigation might be appropriate. As found in the Interim Report, it is generally reasonable for the police to engage in some information gathering to protect the public against possible violence.

[34] However, the broad-scale collection of this type of information creates the risk that individuals will be targeted or profiled based on their political convictions or beliefs in certain causes. This raises the prospect of the "chilling effect"^{Footnote 7} on freedom of expression discussed by the BCCLA in their complaint.

[35] Although Canadians have a significantly reduced expectation of privacy on social media, they have not abandoned their privacy interests altogether. As such, where the RCMP obtains personal information in relation to public order events such as protests and demonstrations that have no identifiable nexus to criminal activity or threats to national security, this information should not be retained. That is to say, once the RCMP has determined that collected personal information has no legitimate law enforcement purpose, it must be disposed of as soon as practicable.

[36] As the Commission concluded in the Kent County Final Report, the RCMP made a policy choice to indiscriminately include and archive personal information about individuals engaged in lawful dissent, including by retaining copies of the social media posts in question as supporting documents. The RCMP decided on its own that all such information forms "business value" records. The Commission finds that the RCMP has cast an unreasonably wide net, and that clearer limits must be placed on the information being retained.

Final privacy recommendations

[37] While the Commission trusts that the RCMP is taking substantive action to address the above concerns, for the purposes of clarity and consistency the Commission has amended Final Recommendation 4 in the same way that it did in the Kent County Final Report. That is, the Commission will add a recommendation that the RCMP treat personal information obtained from open-source intelligence as a separate category of information. This may require the creation of a separate personal information bank, or modifications to the existing banks, as discussed above. Such a category would include "supporting documents" like screen shots of social media sites.

[38] Where the personal information in question has no criminal nexus or national security dimension, it should be kept for no longer than strictly necessary to provide intelligence for the event or purpose for which it was collected. Of course, if a criminal or national security nexus is identified, then the information would become part of the RCMP's operational case records and be subject to the usual retention periods.

[39] The Commission further adds the recommendation that, wherever possible, the RCMP should anonymize any information in an intelligence assessment or other product generated from personal information from open sources that the RCMP reasonably believes is necessary to understand a group or movement but which has no connection to criminal activity (or otherwise to the RCMP's national security mandate).

[40] Anonymized information could be included in an operational file where necessary to provide context or to support an assessment. With that said, where information from or about an individual was critical to the assessment (versus providing context or background), it might be necessary to retain their personal information. The Commission is mindful of the disclosure obligations of the police should a criminal prosecution or other proceeding, such as a public inquiry, involve a given operational file. This is not an easy issue for policy development. From an operational standpoint, the Commission acknowledges the need for the police to be able to exercise good judgment and operate with reasonable flexibility. Nevertheless, the net should not be cast wide, and the indiscriminate or widespread collection and retention of personal information of individuals exercising Charter-protected rights cannot be the goal.

The Commission recommends annual progress update

[41] Finally, the Commission is adding a new recommendation. Considering the serious and substantial nature of the Commission's concerns, and the striking reversal in position and tone from the RCMP Commissioner's response to the Kent County Interim Report, the Commission recommends that the RCMP provide the Commission with an annual update on its progress in implementing these recommendations until the implementation is completed.

The Commission's Final Findings and Recommendations

[42] Consequently, the Commission makes its final findings and recommendations as follows.

Final Findings

It was reasonable for the RCMP to provide a visible presence at the National Energy Board hearings.
It was reasonable for the RCMP to monitor the Prince Rupert protest.
It was reasonable for the RCMP to monitor events for the purpose of identifying criminal activity.
The RCMP acted reasonably in monitoring the demonstrations.
It was reasonable to video-record the demonstrations.
As demonstrated by the RCMP's reliance on a closed-circuit surveillance camera policy, the RCMP lacks a clear policy with respect to video recording public order events such as demonstrations and protests.
It was reasonable for the RCMP to monitor open sources for information about upcoming protests and demonstrations.
The RCMP's current policy on the use of open sources does not provide clear guidance as to the collection, use, and retention of personal information obtained from social media where there is no criminal nexus.
There is insufficient information to support a finding that it was unreasonable to retain the profile and the personal information of Person G.
The RCMP lacks clear policy/guidance as to the use and retention of personal information in circumstances where it is determined that there is no nexus to criminal activity.
It was not unreasonable to conduct open source and internal database checks in the other specific instances reviewed by the Commission.
It was reasonable for the RCMP to attend the workshop and make observations.
It was not unreasonable to collect licence plate numbers for intelligence-gathering purposes.
The RCMP lacks policy/guidance on the collection, use, and retention of licence plate numbers and associated personal information for intelligence purposes.
It was reasonable for the RCMP to share information about potential threats to energy critical infrastructure with Natural Resources Canada.
The RCMP did not share confidential source information with the National Energy Board.
It was reasonable in the circumstances for the RCMP to share intelligence and threat assessments with the National Energy Board.
It was unreasonable for the RCMP to share the personal information of a protest organizer with the National Energy Board.

Final Recommendations

That the RCMP consider implementing a specific policy regarding video-recording protests and demonstrations, setting out criteria and limits for video-recording protests and demonstrations and for video retention periods.
In particular, that all recordings and images of peaceful protests and demonstrations be destroyed as soon as is practicable.
That, in addition to the Privacy Act and the RCMP's existing policy and training, the RCMP provide clear policy guidance setting out defined and reasonably constrained intelligence and law enforcement parameters with respect to the collection of personal information from open sources such as social media sites, the uses that can be made of it, and what steps should be taken to ensure its reliability.
That RCMP policy treat personal information and supporting documents obtained from social media sources containing personal information (such as screen captures of social media sites) as a separate category of records. This may require the creation of a new personal information bank or amendment of the minimum retention times for existing personal information banks. This category of records should be kept for no longer than strictly necessary to provide intelligence for the event or purpose for which it was collected where it is established that there is no criminal nexus or national security dimension.

Additionally, where an intelligence assessment or other product generated from open sources is to be retained, RCMP policy should require the anonymization or destruction of any personal information within that assessment where there is no connection to criminal activity or to the RCMP's national security mandate (such as where the personal information relates to lawful dissent).
That the RCMP develop policies providing that personal information obtained with respect to public order events like protests and demonstrations should be destroyed as soon as practicable and in accordance with applicable law once it is determined that there is no criminal nexus or that the information is otherwise no longer necessary for the purposes for which it was collected.
That the RCMP develop a policy providing that where a licence plate number and any associated personal information has no nexus to criminal activity, the information should not be retained.
That the Kelowna Detachment review all policies concerning the collection, retention and disclosure of personal information and take action to ensure that personal information is disclosed in accordance with legislation and policy.
That the RCMP provide the Commission with an annual update on its progress in implementing the Commission's recommendations until the implementation is completed.

Comment on the RCMP's Unacceptable Delay

[43] The Commission must also comment on the tremendous delay in receiving the RCMP Commissioner's Response in this case. Nearly three and a half years elapsed from the time the Commission issued its Interim Report to the time the RCMP Commissioner responded, despite a requirement in the RCMP Act for the Commissioner to respond, "as soon as feasible."

[44] Crucially, this was not a case where the RCMP Commissioner disagreed with the Commission's findings or where the facts of the case were particularly complex. Nor was the delay caused by the RCMP's implementation of the Commission's recommendations. Instead, it appears to have taken over three years before the RCMP even began to review the Interim Report. Furthermore, the RCMP failed to meet several self-imposed deadlines,^{Footnote 8} and the RCMP Commissioner's Response arrived only after the BCCLA filed an application for judicial review, seeking an order to compel the RCMP Commissioner to respond.

[45] A three-and-a-half-year delay would be egregious and unacceptable in any case. In the case of a matter of national public interest that recommended significant changes to the RCMP's policies, it is incomprehensible.

[46] To be effective, a public complaint system must be timely. Delays reduce or eliminate the effectiveness of the Commission's recommendations and perpetuate the underlying problems. Moreover, years of routine delays diminish or destroy public confidence in the RCMP and in its civilian oversight. The outrageous delays in this and the many other cases still awaiting the Commissioner's response cannot continue.

Conclusion

[47] Pursuant to subsection 45.76(3) of the RCMP Act, the Commission respectfully submits its Final Report, and accordingly the Commission's mandate in this matter is ended.

Michelaine Lahaie
Chairperson

Footnotes

Footnote 1

Commission File Number PC 2013-2339. The Commission's Final Report after Commissioner's Response to Commission's Interim Report Following a Chairperson-Initiated Complaint Investigation into the RCMP's Response to Anti-Shale Gas Protests in Kent County, New Brunswick can be found on the Commission's website at: https://www.crcc-ccetp.gc.ca/en/FACR-anti-shale-Gas-Protests-Kent-County ("Kent County Final Report").

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Footnote 2

Specifically, the Interim Report adopted Recommendations 3, 4, and 5. See the Commission's Interim Report Following a Chairperson-initiated Complaint and Public Interest Investigation into the RCMP's Response to Anti-shale Gas Protests in Kent County, New Brunswick, which can be found on the Commission's website at: https://www.crcc-ccetp.gc.ca/en/commissions-interim-report-anti-shale-Gas-Protests-Kent-County ("Kent County Interim Report").

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Footnote 3

See, for example, the interpretation of this language in a criminal context by the Court of Appeal for Ontario in R v Squires, 59 OR (3d) 765, 2002 CanLII 44982. See also R v Phillips, 27 OAC 380, 1988 CanLII 198 (ONCA). These words were interpreted as meaning "expeditiously" in a different context in Saikaley (Re), 2012 ONCA 92 (CanLII).

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Footnote 4

At least two years, per section 4(1)(a) of the Privacy Regulations. If an individual makes a request for their personal information, section 4(1)(b) also requires the institution to retain that information "until such time as the individual has had the opportunity to exercise all his rights under the Act." There is a further retention period of at least two years where personal information has been disclosed to an investigative body following a request for personal information under section 8(2)(e) of the Privacy Act. This section concerns disclosure of personal information to an investigative body for the purpose of enforcing any law of Canada or carrying out a lawful investigation. See Schedule II of the Privacy Regulations for the designated investigative bodies.

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Footnote 5

See, for example, sections 5(1), 5(2), and 5(3) of the Privacy Act.

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Footnote 6

See section 22 of the Privacy Act.

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Footnote 7

As discussed in the Interim Report, a "chilling effect" refers to the reluctance of individuals to exercise their constitutional rights (particularly freedom of expression) because of state activity that gives rise to a fear of being penalized.

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Footnote 8

The history of the delays to the RCMP Commissioner's response is lengthy. For example, on June 10, 2019, the Director of the RCMP National Public Complaints Directorate said that due to resourcing issues and competing priorities, it was not possible at that time "to even approximate a date by which the . . . Commissioner's Response will be completed."

On July 8, 2020, the Commission Chairperson wrote to the RCMP Commissioner and informed her that if the Commission had not received the Commissioner's Response by October 6, 2020, the Commission would take the extraordinary step of releasing the Interim Report to the complainant BCCLA. The RCMP Commissioner replied that the response would be prioritized so that the RCMP would meet this timeline.

On October 4, 2020, the Director of the RCMP National Public Complaints Directorate informed the Commission that the Commissioner's Response would not be ready by October 6, 2020, as planned. He stated that his hope was to have the Commissioner's Response ready by November 7, 2020.

On November 6, 2020, the Commission wrote to the Director of the RCMP National Public Complaints Directorate to ask whether the Commission would receive the RCMP Commissioner's Response by November 7, 2020. That day, the Director of the RCMP National Public Complaints Directorate informed the Commission that it would not meet this deadline but hoped to have the Commissioner's Response not later than November 20, 2020. The complainant BCCLA filed an application for judicial review in Federal Court on November 9, 2020. The RCMP Commissioner provided her response on November 20, 2020.

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Date modified:: 2020-12-15

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