Gag order to be imposed on new RCMP transparency office

Forward planning documents for Public Safety indicate anybody working for or on behalf of the forthcoming Civilian Review and Complaints Commission for the RCMP will be under a gag order.
Forward planning documents for Public Safety indicate anybody working for or on behalf of the forthcoming Civilian Review and Complaints Commission for the RCMP will be under a gag order. Global News

OTTAWA — The federal government is developing a commission to help restore public confidence in the RCMP – but it will be shrouded in secrecy.

Planning documents for Public Safety indicate anyone working for the RCMP’s new Civilian Review and Complaints Commission will be required to take an “oath of secrecy.”

“This oath ensures that these persons pledge not to disclose any information that they come across in the course of their duties to anyone not legally entitled to that information,” the document reads.

The federal government is revamping the complaints commission, it says, by bolstering its investigative powers.

This makeover comes in the wake of black eyes for the RCMP, including a rash of sexual harassment allegations within the force, the RCMP’s role in handling the Robert Pickton investigation, the fatal Tasering of Robert Dziekański and the RCMP’s seizure of firearms in High River during the 2013 Alberta floods.

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But if this new complaints commission is meant to restore the public’s faith in the red serge, some find this gag order an odd way to start.

“Unfortunately, I think any concern that the government is applying its excessive zeal for secrecy to the commission is legitimate,” said NDP public safety critic Randall Garrison.

A lifetime gag order, a pattern of secrecy

This new  gag order could last forever.

“If an oath does not specify time, it may last a lifetime,” Public Safety spokesperson Jean Paul Duval wrote in an email.

The move to drape the complaint commission in a cloak of secrecy follows other similar moves.

In March, for example, a regulation passed imposing a lifelong gag order on federal employees and lawyers handling sensitive information dealing with national security.

Anyone caught violating that oath of secrecy could face up to 14 years in prison.

members of the RCMP are already bound to secrecy, due to the sensitive nature of much of their work.

Since the department considers placing a gag order over the new commission “administrative in nature” they successfully argued there is no need to consult the public — the very people the complaints commission is intended to serve.

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The RCMP and the existing Commission for Public Complaints were consulted, according to the Public Safety document.

No details on “oath”

A commission spokesperson said she can’t comment on the oath of secrecy because it isn’t yet under the commission’s purview, and referred all questions back to Public Safety.

She did confirm that existing commission employees don’t take any special oath of secrecy, just the same affirmation all federal public servants have since 2006.

The federal department, however, wouldn’t provide details on the new gag order either, saying the work toward establishing the commission is still under way.

Duval wouldn’t say either exactly when the new commission will get off the ground, only that it and the regulations are “expected in due course.”

A complaints commission that can see more, but speak less

Because of legislation passed in June 2013, the new complaints commission will be able to access more classified information than its predecessor.

That access is part of the reason for the cloak of secrecy, says Paul Kennedy, who chaired the commission from 2005 to 2009 and fought for more independence and better access to secret documents.

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“That’s a trade-off you make,” he said in an interview. “By virtue of having such access, you will have to take an oath of secrecy.”

Members of the RCMP return from a boat patrol of a flooded neighborhood in High River, Alta., July 2013.
Members of the RCMP return from a boat patrol of a flooded neighborhood in High River, Alta., July 2013. THE CANADIAN PRESS/Jeff McIntosh

Having access to all relevant documentation is intended to help ensure investigators draft an educated and informed report without divulging any classified information, Kennedy said. While the enhanced access marks an improvement over the boundaries enforced upon the commission as he headed it, Kennedy said he would still have asked for more.

“The legislation involves a very convoluted approach to accessing information. It’s anything but perfect,” he said.

While the new commission will, on paper, have access to more documents, the RCMP commissioner can still try to hold documents back, if he can prove they are not necessary to an investigation.

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If the reasoning doesn’t please the head of the complaints commission, they can request the public safety minister appoint a former Federal or Superior Court judge who will then access to the documents in question and render a decision.

“It’s an unnecessary and, I think, awkward process, but it is at least a process that wasn’t there before,” Kennedy said.

 Questions of independence

Secrecy surrounding this new office underscores the importance of making the commission for complaints against the RCMP independent, said NDP critic Garrison. As it stands, the head of the commission will report through a minister, giving the government at least some time to review reports before the public sees them.

If it were treated as an agent of Parliament like the Office of the Auditor General  and chief electoral officer at Elections Canada – it would report directly to Parliament, not a Conservative minister.

“The only way you know the office would be truly independent and not interfered with by the government would be if it reported to Parliament directly. That’s how public oversight bodies should work,” Garrison said.

“If the commission were reporting to Parliament, then we could have a lot more confidence that we would know what measures are being taken and why they’re being taken.”

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Restoring public trust in the RCMP begins with the person in charge of investigating complaints, Kennedy said. He argues the head of the commission should be appointed for one fixed term, similar to the auditor general, privacy and information commissioners and other officers of Parliament.

“You don’t want to have someone in that position who could be easily removed by the government, or someone who pleases the government of the day so they can be renewed,” Kennedy said. “I think it should be one term, fixed, and then you’re out.”

But that’s what is going to happen. The chairperson, as well as all members of the commission, will serve at the pleasure of the government, meaning they could be turfed, with cause, at any time.

Moreover, anyone with good behaviour can have their terms with the commission renewed.

“There is that nagging concern that the public would like the RCMP to be accountable,” Kennedy said, “And they’d like to have a control and oversight regime they know no one can mess with so they can have faith in the rulings on the force.”