Submission To The Task Force On Governance And Cultural Change In The Royal Canadian Mounted Police

SUBMISSION TO THE TASK FORCE ON GOVERNANCE AND CULTURAL CHANGE IN THE ROYAL CANADIAN MOUNTED POLICE

L’Association des Membres de la Police Montée du Québec

November 2007

TABLE OF CONTENTS

1. Introduction

2. Origins and Mandate of the Task Force

3. The Current RCMP: Organization and Accountability Issues

4. The Legal Framework of Employee Rights for RCMP Members

*Statutory framework

*Delisle v. AG Canada; Dunmore v. AG Ontario; BC Health Services v. BC

*Conclusions

5. The Employer- Employee Relationship within the RCMP

· The SRR Program- A ‘Company’ Union

· The Emergence and Rationale of Members’ Associations

· Health and Safety Issues and Abuses

· A Dysfunctional Grievance System

· The Abuse of the Code of Conduct Investigations and Discipline

· The Suppression of Whistleblowers

· Public Consequences

6. Comparing RCMP Internal and External Accountability with other Police Services in Canada

>Municipal Police Services

>Provincial Police Services

>Other Federal Law Enforcement Agencies

7. Relevant Reports, Cases, Hearings and Bills

8. Recommendations

1. Introduction

Since the Association began to assemble this Submission, two young RCMP officers have been murdered while working alone and in circumstances that reveal deficiencies in emergency response. Additionally, public attention has been focused on allegations of misconduct involving the most senior political figures in the country where the RCMP was involved in past investigations and questions now exist about the independence of the RCMP from government bureaucracy. These events graphically represent the internal and external ramifications of the mandate of the Task Force and underscore its importance.

As the deaths of these young officers and others before them illustrate, police work is inherently dangerous and the organization and construction of the police service itself can have an impact on the risk officers face in the performance of their duties. Equally, the RCMP is frequently called on to investigate politically charged circumstances which necessitate measures to ensure the integrity of the police service is beyond reproach without hint of politicization from the bureaucracy into which it has unwisely been integrated.

Given the magnitude of these issues, it is clearly unwise to create an institution that is immune from internal or external transparency and accountability. To do so is to invite the promotion by management of what is perceived to be the “institutional interests” of the police service rather than the public interest or the welfare of the member officers. Unfortunately, this is precisely what has happened with the RCMP resulting in the circumstances that led to the creation of this Task Force.

This Submission will focus on the desirability, and indeed, in our view, legal requirement, of modernizing the RCMP in the area of employer-employee relations. In doing so, the Submission will also touch on external accountability issues and what we believe to be necessary reforms in this regard. It should, however, always be remembered that because the institution in question is a police service and, in fact, the national police service, with employees performing public duties, the consequences of a dysfunctional employer-employee relationship can have significant public implications. Clearly there are potential negative public consequences when an officer observes managerial misconduct but is without meaningful internal recourse to object. Conversely, a police officer that has statutorily protected, employee representation independent of police management is not faced with ‘taking on’ the entire RCMP by themselves should such a scenario occur which is a public benefit because of the nature of the work involved.

The fundamental importance of employee interest being independent from the employer was a lesson learned in labour relations seventy years ago and more. The public importance of that where the employer is a public institution, especially one created to enforce public laws, is also a lesson learned for decades in Canada. Except for the RCMP.

The RCMP is unique in Canada as a police service that does not permit its members to be self organized in an association, independent of police management, for the purposes of protecting and promoting the interests of member police officers. Following complaints from members in the 70’s, (including one who went on to become an MP) the Force created a Division Representative Program (since renamed as the Staff Relations Representative or SRR program) that it runs and funds to theoretically ‘protect’ the interests of members. This anomaly is fundamental to the RCMP and it should be appreciated that were it not for federal legislation that specifically exempts the RCMP from general labour rules established by the Canada Labour Code, the SRR program would be illegal as a ‘company union’. All jurisdictions in Canada, including the federal jurisdiction,(except insofar as it pertains to the RCMP) recognize the public benefit of independent, employee controlled organizations to protect and promote employee interests by specifically prohibiting employer controlled entities set up for that supposed purpose. The Supreme Court of Canada in the Delisle case [1999]2 SCR 989, also recognized this important principle by defining employer controlled employee association as violating the constitutionally protected right of association in s. 2(d) of the Charter.

It goes without saying that it must, however, be a genuine employee association that management does not control. Otherwise, there would be a violation of s. 2( d ). (para. 37)

This Task Force was created following recommendation from a special inquiry ordered by the Minister as a result of revelations made before the Commons Public Accounts Committee in what has come to be known as the ‘RCMP Pension Scandal’. Evidence before that Committee detailed serious managerial misconduct, financial impropriety, nepotism, compromised investigations, managerial toleration of impropriety, managerial cover up of impropriety, abuse of employees for attempting to do their duties and unresponsive senior command and senior Departmental bureaucracy as well as political leadership. One of the witnesses before the Committee was a senior representative within the employer controlled SRR system who had tried unsuccessfully for years to prevent the abuses detailed above. It is not insignificant that he appeared before the Parliamentary Committee after he retired and not before.

It is also worth noting that the release of information from the RCMP that led to the Public Accounts Committee holding hearings came about only after this Association launched several Access to Information requests directly on the subjects in question. What the RCMP had concealed for years and what the SRR system had been unwilling or unable to expose suddenly was released when it became clear that, thanks to the independent members’ association, the information was going to be made public.

While the tenacity of the former SRR merits recognition, the simple fact is that the employer controlled system, of which he was a part, failed or was incapable of preventing the abuse heard by the Committee. That case and this resulting Task Force are indisputable evidence that it always will be.

Similarly, following the recent tragic murder of Cst. Scott while working alone, a member from the SRR program complained that they had been trying for ten years to have management acknowledge and address the dangers of work alone situations. Chapter 4 of this Submission provides other shocking examples of management indifference to officer health and safety concerns and underscores the lack of internal and external accountability mechanisms to correct that. We are clearly capable of better than this.

Previous, and to a large extent, current legal challenges to the status quo have focused on the deliberate exclusion of RCMP members from the definition of ‘employee’ under the Public Service Staff Relations Act. While that remains relevant, it is also undeniable that the alternative employee interest ‘program’ set up by the RCMP pursuant to the RCMP Act is completely under the control of the employer AND fails to protect the very interests that such representation is designed to achieve. Indeed, the evidence available today demonstrates in an unprecedented fashion that the abuse of members within the Force occurs in spite of the employer controlled program’s existence and, in many cases, because of the program’s existence. The dysfunctionality, inequity and lack of accountability inherent in the RCMP employee relations system and the results it inflicts on individual members and the negative potential public consequences are such as to raise this from being merely an outdated bad idea to an unacceptable situation of dubious legal validity.

This Submission will also detail the recent actions of the RCMP through its controlled SRR system wherein members participating in lawful Association activities are prohibited, on that basis alone, from representing other members as a SRR which is a blatant violation of the express ruling of the SCC on this issue. This too underscores the systemic nature of the abuse of RCMP members and the failure of RCMP management and the RCMP Act to create or permit a process where such abuses do not occur. Put differently, the abusive, unlawful and likely unconstitutional treatment of RCMP members is not happening in spite of the RCMP Act and the Force’s internal systems; it’s happening because of them.

Apart from the individual ramifications of denying and impeding RCMP members’ employee rights, there is now incontrovertible evidence that these actions have negative public consequences in the way in which the Force discharges its public duties. Further, the unprecedented accumulation of individual member case examples expose deficient, malicious and potentially illegal conduct of RCMP management that clearly is contrary to the public interest the Force is supposed to serve.

This Submission will reference a series of cases which we urge the Task Force to review. They include examples of defective health and safety action, abuse of command and discipline procedures and dysfunctional decision making for improper purposes. The current model of the RCMP guarantees the ultimate continuation of such practices. RCMP members…and Canadians…deserve better than this and it is our collective hope that this Submission will assist the Task Force in modernizing and improving the RCMP by recommending independent, effective employee protection such as is statutorily enshrined for all other police services in Canada.

2 . Origins and Mandate of the Task Force

The origin of this Task Force lies in the recommendations made by its Chair when he presented his report, “A Matter of Trust” to Ministers Day and Toews in June 2007. The current Task Foce Chair was appointed as an Independent Investigator by Minister Day in early 2007 and was provided with a mandate to examine issues raised before the Commons Public Accounts Committee and elsewhere relating to the management of the RCMP Pension and Insurance programs. The mandate also included making recommendations on whether a further inquiry was required into those specific issues and whether an overall review of the management structure of the RCMP was warranted. The Report recommended against further issue specific review but in favour of a review of the management structure of the RCMP.

That report provided a recommended mandate for what is now the Task Force which was adopted in its entirety by the Government in setting up this process. The mandate is as follows:

The mandate of the Task Force:

i. to review and consider the challenges faced by the RCMP as set out in the Report of the Independent Investigator into Matters Relating to RCMP Pension and Insurance Plans; and make recommendations on the following issues:

A. the internal management structure of the RCMP including committees and branches, and ways to better ensure they are properly mandated according to modern governance principles of accountability and transparency;

B. means by which a challenge and oversight function could be introduced into the internal management of the RCMP, including how such functions could be effectively integrated into the structure and culture of a modern police organization;

C. means to ensure that senior management is held appropriately accountable;

D. identifying a process to better ensure that the Commissioner and senior management establish and maintain an appropriate ethical structure based on the RCMP's Mission, Vision and Values;

E. ensuring that the RCMP's workplace disclosure policy is appropriate, that mechanisms are in place to ensure protection from reprisal, and that appropriate, clear and decisive corrective measures are taken;

F. ensuring compatibility between an effective workplace disclosure policy and the process for reporting possible breaches of the Code of Conduct;

G. ways to improve the accountability, timeliness and effectiveness of the RCMP disciplinary scheme in the RCMP Act and Regulations, including possible changes to the Code of Conduct and the one-year limitation period; and

H. considering ways of fostering a constructive partnership between civilian and public service employees and regular members at the executive level of the Force;

The Task Force was also empowered to “adopt any procedures for the expedient and proper conduct of the Task Force, including reviewing all relevant records, and consulting senior officials from the Department of Public Safety and Emergency Preparedness, Treasury Board Secretariat, the RCMP, and others as appropriate”.

In addition, the Task Force was authorized among its other recommendation to include “…any recommendations to amend the RCMP Act and RCMP Regulations.”

The Task Force is thus fully empowered to examine mechanisms, including legislative amendments to generally create greater accountability for senior management of the RCMP and to introduce a challenge and oversight function into RCMP management. Creating a more equitable employer employee relationship through a statutorily recognized, independent employee organization would definitely create meaningful accountability and the capacity for challenge. Further, eliminating the employer control of the employee representation would dramatically reduce the potential for abuse of disciplinary action, reprisals against employees involved in appropriate disclosure and deviance from RCMP Mission Vision and Values.

For a law enforcement organization, accountability has both an external and internal context both of which have important public interest ramifications if not present in a practical and enforceable fashion. The recent history of the RCMP demonstrates that this must be more than mere words on a Commissioner’s Directive or Media Release. Effective accountability requires an ability to challenge a management action in defined circumstances according to specified standards without fear of reprisal and with knowledge that arbitrary, capricious and improper conduct will not prevail simply because of the rank of the person involved.