The RCMP has recently been engulfed by a sea of troubles. A commissioner has resigned, two deputy commissioners were suspended, there are parliamen- tary committee hearings and a coroner’s inquest. The force has stumbled from one problem to another with no appar- ent relief in sight. The minister’s independent investigation into administrative abuse of the RCMP pension and insur- ance plans concluded that the ”œparamilitary” governance model of RCMP governance was not one that investors in a $3-billion business would accept.
According the independent investigator, David Brown, modern governance practices are grounded in the principles of oversight and the independence of that oversight function from management. Brown properly declined to recommend a complete governance model based on the single case he had studied. Instead, he rec- ommended that a task force be established to examine the management structure of the RCMP and its oversight function, specifically to determine how internal chal- lenge and external oversight can be superimposed on a policing organization.
To understand how Brown’s question can be answered, it is necessary to take a broader look at the governance prob- lems that have surfaced from within the RCMP. As a means of solution, it is useful to examine what Britain has done to modernize the governance of its police forces in the face of crises of its own.
The RCMP’s current problems have become visible through two windows: several public inquiries into alle- gations of abuse and the more mundane work of the audi- tor general. Examining these cases together gives a more complete view than any one alone.
The case of Maher Arar was one of most troubling inci- dents in recent RCMP history. As is well known, the RCMP anti-terrorist team, Project A-O Canada, improperly provided US authorities with the RCMP’s entire terrorism database with- out complying with policies requiring screening of raw intelli- gence for relevance, reliability and personal information. By doing so, the RCMP provided US authorities with information on Maher Arar that was inaccurate and incorrectly portrayed him and his wife as Islamic extremists linked to al-Qaeda. The Americans subsequently detained Arar while in transit through the United States and sent him to Syria where he was tortured. The commission of inquiry into the Arar case (the O’Connor Commission) concluded that not only had Project A-O Canada not complied with policy, but that the Criminal Intelligence Division to which it reported had ”œfailed completely” to provide direction and oversight to the investigation. O’Connor also concluded that the provision of inaccurate information could have been prevented by adequate training and experience.
The RCMP first failed to adequately investigate its own actions, and when a second internal investigation identified problems covered up by omitting unfavourable facts in reports to the Privy Council Office. The RCMP subsequently misin- formed the Commission for Public Complaints about the results of its investigation. In the end, Commissioner Guiliano Zaccardelli resigned over discrepancies in his testi- mony to the House Standing Committee on Public Safety and National Security regarding his knowl- edge of errors made in the Arar case.
The mismanagement of the RCMP pension and insurance administra- tion funds is the second case. This affair was complex and tangled and is well- documented in the report of the inde- pendent investigator, but the main facts are that the manager of the RCMP’s National Compensation Policy Centre ignored numerous financial and human resource management controls in his haste to outsource the administration of the RCMP’s pension and insurance plans. Extensive rule-breaking occurred because middle managers were able to override management controls and sen- ior managers were AWOL. The abuses surfaced only when staff reported that maladministration was taking place and persisted in using whatever channels they had available to convince senior management to take action. Several of these managers were sent to bureaucratic Siberia for their pains.
As in the Arar case, the RCMP expe- rienced considerable difficulty in con- ducting an internal investigation. The RCMP had no policy governing investi- gation of itself and the auditor general concluded that the criminal investiga- tion by the Ottawa Police Service lacked the appearance of independence. The minister’s investigator went further and concluded that not only the appearance but also the substance of inde- pendence was lacking. In the end, no criminal charges were laid and time ran out for internal discipline.
The third case is the death of Ian Bush of Houston, British Columbia, while in RCMP custody. Mr. Bush, a young BC mill worker, was shot by the lone RCMP officer on duty allegedly while attempting to strangle the police officer who was about to release him on a minor charge. The RCMP took nine months to investi- gate the case, which was reviewed by the New Westminster Police. The Crown did not lay any charges. During the lengthy period of time of the investigation, an RCMP spokesperson was quoted by a news- paper reporter looking into the cause of the delay as saying, ”œThe public doesn’t have a right to know any- thing. It takes long because it takes long.” The Bush incident is still under review by a coroner’s inquest. The coroner has established that proce- dural irregularities occurred, includ- ing the failure to record the incident on the station’s close-circuit TV, the destruction of the officer’s original notes, a lengthy delay in performing an autopsy on the victim and a lengthy delay in taking the statement of the police officer involved.
The RCMP is the largest police force in Canada and the primary police force for 20 percent of Canadians, in urban centres as well as small isolated communities. Contract policing accounts for $1.6 billion in annual spending " $1.1 billion of which is recovered from provinces, territories and municipalities.
Unlike provincial and municipal police forces, which in general are accountable to police service boards representing the community, the RCMP is accountable only to the federal govern- ment. The RCMP consults with its clients in establishing policing priori- ties, but provides little in terms of for- mal reporting on performance.
In a 2005 report, the auditor gener- al typified RCMP performance reporting as ”œpoor” and noted that annual reports did not address how well the RCMP did in delivering police services or the extent to which provincial or territorial priorities had been met. At the munici- pal level, there often was no individual contract policing agreement and there- fore no obligation for the RCMP to report on performance. Reporting to municipalities was informal and often not adequate. Reporting to the federal Parliament was scarcely any better.
The RCMP has also had difficulty in responding to specific requests for information from Parliament. In 2005, the House of Commons Standing Committee on Justice and Human Rights, Public Safety and Emergency Preparedness heard con- flicting testimony on the performance of the Forensic Laboratory Services. A subsequent report by the auditor gen- eral stated that claims made by the RCMP regarding laboratory backlogs, turnaround times and procedures for fast-tracking DNA analysis of all seri- ous crimes were incorrect. When the Public Accounts Committee held hear- ings on the report, the RCMP aban- doned claims that its speed of service was the best in the world.
In order to understand how to fix the symptoms, it is first necessary to understand their origins. Looking at the system as a whole, there would appear to be three major deficiencies: the doctrine of constabulary inde- pendence that lies behind the RCMP Act, inadequate capacity to support the minister in his role, and the absence of effective oversight.
David Brown, the minister’s inde- pendent investigator, put his finger squarely on the first problem. Unlike other departments and agencies where the Minister is responsible to the House of Commons for day-to-day operations, the minister responsible for the RCMP has a reduced responsi- bility for police operations because of the doctrine of ”œconstabulary inde- pendence.” Parliament abandoned this philosophy for national security inquiries when it established CSIS. It was, however, retained by the RCMP for criminal investigations.
Moreover, the minister’s ability to assert even high-level direction has been made ambiguous by the courts. Although the RCMP Act assigns control and management of the force to the commissioner ”œunder the direction of the Minister,” a recent Supreme Court of Canada ruling stated that ”œwhile for certain purposes the Commissioner of the RCMP reports to the Solicitor General, the Commissioner is not to be considered a servant or agent of the government while engaged in a crimi- nal investigation. The Commissioner is not subject to political direction. Like every other police officer similarly engaged, he is answerable to the law and, no doubt, to his conscience.”
The extent to which the independ- ence of the police extends to other administrative areas remains unclear. It would appear obvious that while it would be undesirable to have the min- ister directing police investigations, it also seems desirable that the minister has the ability to direct police policy overall. That is, to set budgets, to set spending priorities for particular areas of enforcement, to determine whether police are meeting program delivery goals and standards and to determine whether the expenditure of public funds on particular policing initiatives results in appropriate value to society.
Legal authority aside, it is doubtful that ministers have the means to discharge these responsibilities well. The current Department of Public Safety is built upon the Department of the Solicitor General which preceded it.
One knowledgeable observer noted that the Department of the Solicitor General had struggled for over 30 years to develop a role based on an appropriate and workable relationship between the government and the agen- cies in the portfolio, particularly the RCMP. The first deputy solicitor gener- al did not press the agencies and was effectively ignored. The second attempted to subordinate the commis- sioners of the RCMP and the penitentiary service to himself and end their status as independent deputy heads. He failed. After that defeat and subse- quently being unable to maintain access to RCMP Security Service file information, the department retreated to building a criminal law policy capa- bility and elaborate and duplicate budgetary systems, and designing its own bureaucratic structure. After the MacDonald Commission report, the department focused on areas such as drugs, firearms, witness protection and organized crime.
The present Department of Public Safety has a more or less unchanged relation- ship with the RCMP. It remains preoccupied with the soft side of the criminal justice system and does little in terms of police policy or evaluation of RCMP policing programs.
The final reason that accountability is weak is the lack of fully effective external review. There can be little doubt that, given the demonstrated incapacity of the RCMP to investigate itself, external review is required, but the current review regime is far less than comprehensive.
The Commission for Public Complaints Against the RCMP (CPC) is designed to investigate only complaints regarding the conduct of individual members of the RCMP, not the policies or professional practices of the force. While the chair of the CPC can initiate investigations without another com- plainant, the CPC is entirely dependent on the RCMP itself to determine what information is relevant to the CPC’s investigations. The last chair of the CPC was extremely frustrated by the RCMP’s lack of cooperation with her investiga- tions and concluded that ”œthere appears to remain a belief within elements of the RCMP that secrecy is to be preferred over transparency and accountability.” The current chair has vigorously advo- cated additional powers that would allow the CPC to determine the objec- tives and scope of its investigations.
In considering what the solution might be to the governance issues facing the RCMP, Britain offers several promising options.
The British government has been working at modernizing its approach to police governance over the past two decades. While there are significant differences between the organization of the British government and the Canadian one, it is not necessarily the case that these differences preclude consideration of British innovations in a Canadian context.
British police reform began in the 1990s when deterioration in the crime rate in England and Wales and the political rapprochement in Northern Ireland created pres- sures and opportunities for change. One of the key advances in thinking that came out of reforms in Northern Ireland was the reformulation of the doctrine of constabulary independence. The Independent Commission on Policing for Northern Ireland (Patten Commission) not only addressed the personnel and structural elements of turning the Royal Ulster Constabulary into the Police Service of Northern Ire- land, it also reviewed the doctri- nal basis for police accountability to the community. The Patten Commission stated,
The arguments involved in support of ”œoperational inde- pendence” " that it minimises the risk of political interference and that it properly imposes on the Chief Constable the burden of taking decisions on matters about which only he or she has all the facts and expertise needed " are powerful arguments, but they support a case not for ”œindepend- ence” but for ”œresponsibility.”
Operational responsibility means that it is the chief con- stable’s right and duty to take operational decisions, and that neither the government nor the Policing Board should have the right to direct the chief constable as to how to conduct an opera- tion. It does not mean, however, the chief constable’s conduct of an operational matter should be exempted from inquiry or review after the event by anyone. That should never be the case.
The concept of operational respon- sibility has been accepted by the Home Office for England and Wales as well as Ireland. A 2003 Home Office consulta- tion paper formally proposed adopting operational responsibility in place of operational independence. The result- ing Home Office report, Building Communities, Beating Crime, made no reference to the ”œindependence” of chief police officers, but made six refer- ences to ”œresponsible” or ”œresponsibili- ty” in seven short paragraphs.
Acceptance of the concept of opera- tional responsibility in Canada would have several advantages. It would pro- vide a clear policy basis for more mean- ingful accountability to entities contracting the RCMP as their police force. It would send a clear message regarding after-the-fact secrecy when complaints arise and set a firm founda- tion for a strengthened review authority, rather than create a source of on-going tension if the independence concept is preserved unchanged. Finally, it would clarify the roles of minister and commis- sioner which have been clouded by the concept of constabulary independence.
The second British practice that should be examined is the role of the Home Office. While the British sys- tem is unitary and it is true that the cen- tral government occupies much of the space that provincial, territorial and municipal governments in Canada pos- sess, it would be mistaken to conclude that the British governance structure is simple. Power is shared between the Home Secretary, the chief constables and the local police authorities much in the same way that authority over the RCMP is shared by the federal minister, the commissioner of the RCMP and the provincial attorneys general or other authorities with contract policing arrangements with the RCMP.
Dissatisfaction with the organization and results achieved by the British police began in the 1980s, but reached a peak in the early 1990s. Crime rates had rocketed and contin- ued to climb at a rate that alarmed the public and elected officials. A number of studies indicated that increased police numbers were unlikely to have any effect on crime reduction and the problem was, at least in part, failures in police management. The central problem identified was the failure to identify and target priorities.
The government responded with a raft of initiatives and legislative changes designed to ensure that priorities were in place, that there were means of monitor- ing achievement and that results were publicly reported. In 1994 the Audit Commission (an independent body responsible for performance audit of local government) was given responsibil- ity to monitor police performance. Her Majesty’s Inspectorate of Constabulary (HMIC) was given wider authority to examine police efficiency and effective- ness. And in 2002 the Police Standards Unit was established within the Home Office to monitor the performance of different force areas against government policing targets. Also in 2002, the Home Secretary announced the first ever national policing plan, which directly identified to chief constables the areas they must prioritize in their local polic- ing plans. Such priorities included drug- related crime, car crime, burglary, street crime and anti-social behaviour. The government also passed the Crime and Disorder Act in 1998, which emphasized the police working in formal partnership with local authorities and community groups.
All these initiatives have worked to make the concept of constabulary responsibility real. At the strategic level where priorities are decided and broad outcomes assessed, there is little room left for unilateral decision-making by the police. Communities must be con- sulted and results reported. Failure to achieve results can result in interven- tion by the Home Office through review by the Police Standards Unit and HMIC. A number of senior police offi- cials were released in 2003-04 for per- ceived underperformance against Home Office targets.
The British model of governance has several other features that are worth considering. The first is the unambiguous role of the Home Secretary in his ability to provide strategic direction to the police servic- es. Under the Police Reform Act 2002, the Home Secretary is responsible for tabling a national policing plan in Parliament each year setting out prior- ities for the next three years. The exis- tence of the national plan has resulted in the creation of a monitoring system to report and assess progress on it. The data collected, reported and used by the Home Office is impressive to someone used to the generally vague or highly selective performance statis- tics reported by the RCMP.
The existence of an overall plan with goals and reporting against them is such an elemental requirement of accountability that the only remark- able feature of the Home Office system is that the Canadian federal govern- ment seems unable to duplicate it.
The second important feature of police governance in Britain is the type and level of external review of police performance. As has already been noted, external review should encompass both the review of professional standards and the investigation of complaints. Her Majesty’s Inspectorate of Constabulary (HMIC) is the very powerful external body charged with this task.
Independent of both the Home Office and the police service, the role of the HMIC is to ensure that agreed standards are achieved and main- tained, that good practice is spread and that police performance is improved. The HMIC is a relatively small organization, and its latest annual report states its budget as just less than £10 million a year, under 1 percent of the cost of policing in Britain. It is staffed largely by second- ed police officers and the appoint- ment of civilians as inspectors is a relatively recent innovation.
The focus of HMIC is not compli- ance, but performance. Its principal tool is the ”œBaseline Assessment” which mon- itors performance on a three-year cycle on the same lines as the Home Office per- formance reporting system. Results are publicly reported. In addition, there are also regular inspections of the 300 Basic Command Units in the police service. These are based on validated self-assess- ment. As well, there are annual ”œBest Value Reviews” of each police authority, thematic reviews that cut across police services and special projects undertaken for the Home Secretary.
This is one review function that is entirely absent in the Canadian federal system. There is no external body charged with reviewing the performance of the RCMP except for the auditor gen- eral. However, the Office of the Auditor General lacks the resources to provide anything more than sporadic assess- ments. The last two audits of contract policing were 13 years apart. Without adequate performance information or an external quality reviewer there will continue to be a tendency to ignore or even deny problems and to provide only positive information upwards and to the external world. Problems will surface only when a crisis arises.
Finally, the British system, while still relatively new and therefore with- out much of a track record, appears to address the key limitations of the RCMP’s public complaint model: The inability of the review agent to deter- mine what information is required to do its job and compel the production of it and the ability to launch broad reviews on its own initiative.
The Independent Police Complaints Commission (IPCC) was created by the Police Reform Act 2002 and came into being in April 2004. The concept of the IPCC is that of shared responsibility with the police services for the investigation of complaints and also of proportionali- ty in the use of investigatory powers. For the most part, the IPCC allows the police to investigate complaints against them- selves but sets standards and audits the process. For more serious cases of alleged abuse, the IPCC can directly supervise the police investi- gation or investigate entirely on its own. The Act makes it the duty of the police to pro- vide the IPCC with informa- tion requested and to otherwise assist it. The IPCC has extensive investigatory powers, including the power to use intrusive surveillance and covert human intelli- gence sources.
The governance crisis of the RCMP is not limited to a too powerful com- missioner. Indeed, the RCMP’s difficul- ties will not be completely resolved even by addressing the question of independ- ent review of compliance problems. A much broader accountability reform program is needed.
What is needed is to go back to the beginning and re-think the relationship between the RCMP and the outside world " especially the minister and the public the force serves. The concept of a closed force unilaterally determining what is good for Canada has proven to be unresponsive to the needs of its clients and corrosive to internal disci- pline. Movement away from ”œconstabu- lary independence” and toward ”œconstabulary responsibility” appears an essential element of reform.