Part 1, on the Task Force on Governance and Cultural Change in the RCMP report on Rebuilding the Trust, and;
Part 2, on the O’Connor Commission Report on a New Review Mechanism for RCMP National Security Activities.
Part 3: ICCOR, ICRA, and Beyond
Two reports on RCMP review have recently been given to the Government, and there will almost certainly be some RCMP restructuring during 2008 in response. In previous posts, I have summarized the key recommendations of each report as they pertain to RCMP review. Several questions arise from reading these documents:
- Are the two reports comparable in terms of objectives and scope?
- How would following either of the reports change the way that the RCMP is structured, or the way that it functions?
- What are the major similarities and differences between the reports?
Objectives and Scope:
For starters, it is important to consider the different goals of the Task Force on Governance and Cultural Change in the RCMP and the O’Connor Commission.
O’Connor’s report arises from the mandate of the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar. It is ‘part 2’ of the Commission deliverables, with the first part being an in-depth Factual Inquiry. The Commission was set up to assess the ways in which the treatment of Maher Arar may have reflected deeper problems with the RCMP’s national security activities (I won’t go into detail about the limitations of the Commission mandate here – a future blog topic, no doubt). The overall objective of the O’Connor Report is the outlining of a new RCMP review mechanism that could provide accountability for RCMP national security activities, given the problems revealed by the Commission. At first glance, we might conclude that this objective makes for a rather narrow mandate; most RCMP activities are unrelated to national security investigations, after all. The O’Connor report (by virtue of the Commission mandate) does not provide direction as regards the review of other federal policing activities, contract policing at the provincial level, protective policing, or aspects of transnational policing outside to the national security realm. On the other hand, O’Connor adopts a very broad understanding of the policing of national security, and he recognizes the RCMP as one actor in an increasingly complex and interwoven field. Consequently, while his report is focused on the RCMP as an entity, his recommendations often address activities that take place on the borders of that entity, where it intersects with foreign and domestic partners.
The Task Force report emerges from a much different mandate. The Task Force was set up to examine governance and cultural change in the RCMP following a scandal over RCMP pension and insurance plans (and an independent report on the matter, written by the head of the Task Force). The terms of reference for the Task Force direct it to consider a broad range of issues, including RCMP management structure, accountability and transparency, employee relations and grievances, and ethics. Given this broad mandate, the Task Force was free to make recommendations on matters outside the scope of the O’Connor Commission. The Task Force Report considers and makes major recommendations on the relationship between the RCMP and the Government, the governance and management of the RCMP, and RCMP review and oversight. While the scope is much wider than that of the O’Connor Commission, the Task Force report is considerably shorter, and it lacks the attention to detail and depth of O’Connor’s recommendations regarding review.
Ultimately, the O’Connor Report sets out focused recommendations regarding a particular facet of RCMP review, whereas the Task Force Report sets out very broad recommendations about the RCMP and its activities, one of which deals with review and oversight.
Structural Matters:
The Task Force Report recommends the creation of an Independent Commission for Complaints and Oversight for the RCMP (hereafter the “ICCOR model”), while the O’Connor Report recommends the creation of an Independent Complaints and National Security Review Agency for the RCMP (hereafter the “ICRA model”).
The ICCOR model would see the creation of a five-member arms-length review and oversight body that would absorb the existing CPC and ERC bodies, effectively consolidating all RCMP review and complaints (both external and employee) functions under one roof. ICCOR would have a comprehensive mandate that encompasses all aspects of RCMP operations. It is important to note that the creation of ICCOR would correspond with other major alterations to the RCMP’s structure and operations. The Task Force recommends that the RCMP be given ‘separate employer’ status (creating greater independence from government), and that a Civilian Board of Management “with strong business expertise” should be created to oversee “finances, staff, property, services, resources and procurement” (the Commissioner would remain in charge of policing). ICCOR recommendations arising from reviews would go to both the Commissioner and the new Board of Management.
By contrast, the ICRA model proposed by Commissioner O’Connor would see a new national security review mechanism created within the existing CPC, which would then be renamed ICRA. ICRA would be responsible for all complaints pertaining to the RCMP, and for self-initiated or directed reviews of RCMP national security activities. Its mandate would not encompass employee grievances and disciplinary matters, which would presumably remain with the existing ERC body. Additionally, O’Connor envisions ICRA reporting to the Commissioner of the RCMP, and operating in relation to an otherwise-unchanged RCMP structure. If O’Connor’s recommendations were followed to the letter, ICRA would also be responsible for the review of the national security activities of the Canada Border Services Agency (CBSA), something not addressed by ICCOR. Additionally, the O’Connor Report recommends the creation of an Integrated
National Security Review Coordinating Committee (INSRCC), which would coordinate national security-related reviews undertaken by ICRA, the Security Intelligence Review Committee (SIRC), and the Commissioner of the Communications Security Establishment (CSE). The ICCOR model makes no recommendations for a similar meta-review body (or super-nodal review structure).
Major Similarities and Differences:
In some respects, the two models are quite similar. Both models would create an independent and arms-length body with enhanced powers. Both would incorporate the existing Public Complaints Commission (CPC) into the new model. Both envision a review body capable of responding to complaints, initiating its own investigations, or undertaking investigations at the behest of the Minister of Public Safety. Both models propose that the new review body should make non-binding reports that are made public (to the extent possible) – although ICCOR would see these reports being given to the RCMP Commissioner and new Board of Management, whereas ICRA would see the reports given to RCMP Commissioner and the Minister of Public Safety.
Important differences exist between the models as well. First, it is important to note that ICCOR incorporates both review and oversight (nominally, at least – it is sparse on details and does not discuss the differences between the two), whereas ICRA specifically focuses on review. For a good discussion of why this emphasis is important, I recommend listening to Ron Atkey’s remarks during the last Nathanson Centre “After Arar” workshop. The reason for the different approaches to the review / oversight question has to do with the ways that the authors of the two reports envision the relationship between the RCMP (and police more generally) and government, and with their opinions on the degree of involvement that the new body should have in the ongoing activities of the RCMP. Generally speaking, review mechanisms address complaints and undertake investigations with the goal of ensuring a match between operations and existing accountability structures (guidelines, rules and regulations, laws, etc). Oversight bodies, O’Connor notes, are understood to be part of the accountability structure of an organization, which gives them broader mandates for directing activities. O’Connor does not include oversight in his outline for ICRA, and he justifies this by arguing that
“An oversight mechanism could confuse, or even lessen, both the RCMP’s accountability to government and government’s responsibility for the RCMP. A body that engages in oversight might also lose some of its independence from the RCMP and become implicated in decisions that should be subject to independent review after the fact. Most importantly, I base my conclusion on the fact that an oversight mechanism would not respect the doctrine of police independence” (pp. 457-458).
The Task Force Report does not address these concerns as regards oversight. A major aspect of the Report is its recommendations around separating the RCMP from government (through independent employer status and the creation of a Board of Management). The Report does note that this is intended to strengthen RCMP accountability to government, and not to provide an insulating layer. I would like to see the Task Force provide greater detail on this matter.
Two other important differences stand out.
First, the ICCOR model as presented does not reflect any sensitivity to the challenges presented by RCMP national security activities over and above ‘regular’ policing. In fact, one could be forgiven for thinking that the Task Force Report was written prior to the Arar Affair, and indeed prior to the changes that followed in the wake of September 11, 2001. Even the most conservative reading of the reports of the O’Connor Commission would have to acknowledge that there are unique problems associated with the governance of accountability in relation to the policing of national security.
The ICRA model certainly recognizes this. It notes the particular inadequacies of a complaints-based approach to accountability in relation to national security activities (which are generally so secret that by the time someone is in the position to launch a complaint, the damage has already been done – Arar is a good example). Accordingly, O’Connor spends a good deal of time emphasizing the importance of self-initiated reviews.
Beyond this – and this is, in my opinion, the most significant difference between the two models – the ICRA model deals with the RCMP as one node in a network of national security policing, whereas the ICCOR model reflects an archaic and myopic understanding of the RCMP as an island unto itself (at least as far as review is concerned).
Conclusions:
The short version: The ICCOR model fails to recognize that the RCMP exists in a network, and the ICRA model is limited by its focus on national security.
Either model would probably produce enhanced accountability, but ICRA strikes me as being more forward-looking, reflecting a better understanding of the nature of modern policing. The fact is that contemporary policing activities, both national security-related and otherwise, are increasingly networked and collaborative in nature. The policing of transnational crime requires international cooperation, as does the policing of national security. The RCMP is an important node in
I think that the limitations of the ICCOR model were in some ways inevitable, given the emphasis that the Task Force placed on the “business” of the RCMP (this emphasis was itself a product of the composition of the Task Force). The goals, language, and mentality of corporate governance, fiscal responsibility, and management seem suited to the fostering of a ‘business model’ that is efficient, independent, and structurally sound, but not to the production of substantive accountability in a networked field.
Moving forward, it is possible to envision a model that retains some of the best aspects of both ICCOR and ICRA, while compensating for their respective limitations. Such a model would look like ICRA, but with the additional grievance and disciplinary mandate of ERC incorporated. It would be arms-length, independent, and with enhanced investigatory and review powers (as recommended by both reports). These powers and the mandate of the new review body would be set out in legislation. The new body would incorporate a special mandate for the review of RCMP national security activities, above and beyond the complaints process, and this mandate would emphasize the importance of self-initiated, directed, and / or third-party-initiated review. As per ICRA, the new review body would also be responsible for the review of the Canada Border Services Agency (CBSA). Ideally, the recognition of the networked nature of policing (not just national security-related, but policing in general) would be enshrined in the legislation and mandate of the review body. This would include the goal of creating and maintaining 'statutory gateways', as per ICRA, again not limited to the national security field. Further, the national security review activities of the new RCMP review body would be coordinated by an Integrated National Security Review Coordinating Committee, which would also coordinate review activities for SIRC and the CSE Commissioner.
Such a review body would be able to operate within the new RCMP structure set out in the Task Force Report, provided that the Civilian Board of Management was appropriately staffed and reasonably stable.
There are many additional problems of governance and areas where police reform is necessary, but I have limited these remarks to the areas covered by the two reports in question. In the coming months, the question of RCMP reform - including a new review body - will be taken up in earnest by the Government. New legislation will be required, so the matter will definitely come before Parliament as well. At present, both the ICCOR and ICRA models are on the table. Neither are adequate on their own, but a combination of the two would be a good start for reform. I would argue that adopting a model based on ICCOR and the Task Force Report, without the additional considerations provided by O'Connor, would be disastrous, and I hope that the government's apparent enthusiasm for the Task Force report is not a sign that such an approach is being considered.
- Mike
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