New "RCMP Accountability, But... Act" coming into Force

Public Safety Minister Blaney announced today the coming into force of 2013's Enhancing Royal Canadian Mounted Police Accountability Act.  A substantial redrafting of the RCMP Act, the accountability measures in the amendments are an improvement, but come with important catches in the area of national security.  So, tongue in cheek, I have called this blog entry "RCMP Accountability, But... Act".

Readers will recall that the Arar Commission -- rapidly disappearing behind the taillights of inaction -- recommended a robust review body for the RCMP, with powers analogous to those of CSIS's Security Intelligence Review Committee (SIRC).  The key recommendations were an enhanced arm's length complaints (and also review) body which could a) self-initiate reviews on national security matters; b) investigate and report on complaints; c) conduct joint reviews with SIRC and the CSE commissioner; d) conduct reviews at the request of the public safety minister; e) conduct reviews into other government bodies on request of the governor in council (the new body was to extend beyond just the RCMP to include other, currently unreviewable bodies like CBSA); (f) make recommendations to ministers in the course of all these activities.  More than this, the body was to have (g) robust access to the information required for its job.

This is report card season.  And so measured against these recommendations, the new Civilian Review and Complaints Commission for the RCMP gets a D, mostly because of the information access nightmare it sets in  play and also because the government continues to resist the idea that accountability should be streamlined and coordinated, not stovepiped by agency.   Chart 1 gives the details:

Arar Recommendation

Actual Power

a) self-initiate reviews

B grade.  The power exists, but it is not as regularized as the equivalent review function of SIRC and is caveated with provisos about only doing this if there are sufficient resources.  In other words, this is painted as an extraordinary event, not a regular undertaking.

b) investigate and report on complaints;

A grade.  Looks fairly good, subject to concerns about information access in (g) below.

c) conduct joint reviews with SIRC and the CSE commissioner;

F grade.  While there is a language about collaborating with other police review entities, nothing about working with the national security review bodies.  In other words, the new Act misses the entire point of the Arar recommendations.  (For how I would propose fixing it, see the back end of this post.)

d) conduct reviews at the request of the public safety minister;

A grade.  Looks fairly decent, subject to concerns about information access in (g) below.

e) conduct reviews into other government bodies on request of the governor in council (the new body was to extend beyond just the RCMP to include other, currently unreviewable bodies like CBSA);

F grade.  The Commission’s mandate is limited to the RCMP.  Other powerful agencies – not least the CBSA – sail about still without any review body at all.  Very bad news.

f) make recommendations to ministers in the course of all these activities. 

A grade.  Where there is a review, recommendations can be made.

g) full access to information

D- grade.  Herein lies the rub.  The Arar commission envisaged the Commission having SIRC-like access to information (that is, basically unalloyed, at least in principle).  The Act improves on its predecessor, surely, but in the realm of so-called “privileged” information (including that most material to national security matters), it allows the RCMP to resist disclosure on the basis that the information is irrelevant or unnecessary, whatever that means (in the eyes of the Commissioner).  This then provokes a complicated adjudication process by a retired judge.  And after seven years, an endless administrative process, several judicial review applications, and millions of dollars expended in Canada v. Canada cases, maybe the Commission gets the information and the review/investigation can continue.  Or maybe not.  This is not the SIRC model.  At best it is SIRC-lite, or maybe even SIRC-less. 

 

Because of the shortcomings in the information access area, every other improvement in the system risks being illusory. 

A last observation stems from another Arar commission recommendation: "Appointments of [Commission] members should be aimed at inspiring public confidence and trust in their judgment and experience. Appointees should be highly-regarded individuals with a stature similar to SIRC appointees."  Strong agencies with weak appointees are only as strong as their appointees.  Weak agencies with strong appointees can be stronger than their legislative framework.  Ten years post-Arar, SIRC is not a model for uncontroversial and confidence-inspiring appointees, and an even weaker model for proper staffing and financing levels.  Overall, the record of watchdog appointees over the life of the current government is checkered: some very good, some horrific. 

So the final question: who will these commissioners be, and will they be adequately resourced? Unless they are rock-solid, and well-financed and staffed, then the already structurally-imperfect Enhancing Royal Canadian Mounted Police Accountability Act will be empty legal formalism.