Vol. 148, No. 7 — February 15, 2014

Regulations Amending the Royal Canadian Mounted Police Regulations, 1988

Statutory authority

Royal Canadian Mounted Police Act

Sponsoring department

Department of Public Safety and Emergency Preparedness

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

The Royal Canadian Mounted Police (RCMP) provides federal policing services across Canada, and local policing services through policing contracts with three territories, eight provinces, approximately 150 municipalities, and over 600 Aboriginal communities.

Over the years, various instruments such as memorandums of understanding (MOUs), provincial legislation and a National RCMP Victim Assistance Policy (the Policy) have been employed to authorize the RCMP to proactively disclose personal information about a victim who has suffered, or is at risk of suffering physical or psychological harm or economic loss (proactive referral) to victim services organizations (VSOs) that can offer support. Not all of these instruments are utilized in the provinces policed by the RCMP. Where the instruments are utilized, they do not authorize the RCMP to effect proactive referrals to the full range of VSOs in the provinces.

For example, Newfoundland and Labrador, Prince Edward Island and New Brunswick have legislation (see footnote 1) and province-wide MOUs with the RCMP authorizing proactive referrals to VSOs that are government entities (system-based: VSOs administered by provincial governments or police-based). Saskatchewan also has legislation and MOUs authorizing proactive referrals. Saskatchewan’s legislation is not proclaimed and its MOUs are individual MOUs signed between the RCMP and each of the 11 VSOs located in RCMP detachments and managed by non-profit community victim services boards. As a result, proactive referrals cannot be made to other types of VSOs, such as community-based VSOs that exist or could be established in Newfoundland and Labrador, Prince Edward Island, New Brunswick and Saskatchewan, as the case may be.

A number of provinces have not enacted legislation authorizing proactive referrals, in part, because of conflicting views on whether provinces have jurisdiction to enact legislation authorizing the RCMP to make proactive referrals.

In British Columbia where there are no MOUs or legislation authorizing proactive referrals, such referrals are made under the Policy to victim services organizations located in RCMP detachments. Hence, the RCMP cannot effect proactive referrals to over 40% of the VSOs in British Columbia which are community-based VSOs.

In Nova Scotia, Manitoba, Alberta, the Northwest Territories, the Yukon and Nunavut, the RCMP cannot effect proactive referrals as there are no MOUs or legislation authorizing proactive referrals to community-based VSOs, system-based VSOs, court-based VSOs and police-based VSOs, as the case may be.

Provinces and territories that have contracted RCMP policing services have voiced concerns about the need to develop a framework that would ensure a consistent and uniform approach for proactive referrals across jurisdictions policed by the RCMP while providing a secure legal foundation on which to ground the making of such referrals. A regulatory framework is required to overcome the barriers that prevent the RCMP from effecting proactive referrals and to ensure compliance with the Canadian Charter of Rights and Freedoms and the federal Privacy Act by setting out clearly the conditions that must be met to justify such referrals.

Background

The RCMP’s authority under the Royal Canadian Mounted Police Act, the Security Offences Act, and the common law includes preventing and investigating crime; preserving the peace and order; protecting life and property; enforcing laws; contributing to national security; ensuring the safety of state officials, visiting dignitaries and foreign missions; and providing operational support services to other police and law enforcement agencies within Canada and abroad.

The Royal Canadian Mounted Police Act incorporates existing common law police powers and duties as the powers and duties of RCMP members. In other words, if a police duty or power such as preserving the peace and protecting life exists at common law, it exists and is incorporated under the Royal Canadian Mounted Police Act. Common law police powers and duties continue to be defined and clarified in judicial decisions rendered by the courts.

The modern justice system, including police services, strives to better meet the needs of victims of crime and to recognize the role that victims play throughout the criminal justice process. As part of this process, provincial VSOs such as the Victim Services Centres of the Department of Justice of Nova Scotia and the BC Centre for Elder Advocacy and Support are available to protect and support victims; to help them cope with the trauma of victimization; and to participate in the justice system as witnesses to detect and hold offenders accountable.

The RCMP members’ duties include assisting victims when doing so is necessary to satisfy existing common law police duties such as preserving the peace, preventing crime and protecting life and property. This may require disclosing key information about a victim to a VSO, to allow them to make early contact with a victim to provide needed information and services. As required by operational policy, an RCMP member will first seek to obtain the victim’s consent to disclose their information to a VSO. Where a victim consents to this disclosure, there is no privacy intrusion. However, when there is no consent, under common law an RCMP member may have the power to make a proactive referral where it is necessary to preserve the peace, prevent a crime, or protect a life or property. For example, in the absence of express legislative authority, an RCMP member may have the common law power to proactively disclose information about a victim of domestic violence to a VSO to protect the victim’s life on the grounds that the assailant has grievously assaulted the victim in the past, has recently threatened to harm the victim and remains at large. Additional grounds could include the RCMP member’s belief that there is a risk of physical or emotional harm to the victim and the VSO can assist in mitigating those risks by, for example, finding a temporary women’s shelter for the victim.

However, the legality of the proactive referral under common law will depend on factors such as the risk of harm to the victim, the type of personal information disclosed, whether the assistance of the VSO could mitigate the risk of harm and whether there were other means of mitigating the risk of harm that were less invasive of the victim’s privacy. In the main, to determine whether the exercise of the police common law power to effect a proactive referral in the above circumstances was reasonable would require additional facts. Similarly, the police common law power to make proactive referrals remains largely undefined in case law. The courts have neither described nor restricted in judicial decisions the conditions under which the RCMP may proactively disclose a victim’s personal information to a VSO.

Legislatively removing barriers that prevent the RCMP from sharing personal information with VSOs without the consent of victims, such as those who are incapacitated or unable to consent under the circumstance (e.g. if they are under the control of an abuser), is a long-standing issue. Facilitating proactive referrals would better protect and help victims, ensure effective criminal justice processes and support the delivery of victim services.

The Federal/Provincial/Territorial (FPT) Ad Hoc Working Group on RCMP Referrals to Victims Services was created to develop options to resolve the issue of barriers to proactive referrals. In June 2012, it presented its Final Report to FPT Deputies Responsible for Justice and Public Safety who approved the following recommendation:

“[That] Public Safety Canada work with the RCMP and consult the FPT Working Group on Victims of Crime, as needed, to draft a Governor in Council regulation as authorized by s.21(1)(b) of the RCMP Act that permits the sharing of information with victim services in compliance with section 8(2)(b) of the Privacy Act.”

The proposed Regulations are consistent with the Government’s proposal, announced by the former minister of justice, Robert Nicholson, on February 4, 2013, to introduce a Canadian Victims Bill of Rights this fall.

Objectives

The proposed Regulations amending the Royal Canadian Mounted Police Regulations, 1988 (RCMPR) would ensure a consistent and uniform approach to proactive referrals across the majority of jurisdictions (see footnote 2) policed by the RCMP, (see footnote 3) while providing a secure legal foundation on which to ground the disclosure of referral information. The proposed Regulations would meet the requirements of paragraph 8(2)(b) of the federal Privacy Act and would be compliant with the Canadian Charter of Rights and Freedom for the following reasons. First, the Regulations would provide lawful authority to the proactive disclosure of limited personal information made under the conditions described therein. Second, the proactive disclosure of personal information to a VSO would be considered a reasonable interference with an individual’s privacy because the Regulations’ safeguards ensure that only a minimum amount of information is disclosed and only in appropriate circumstances. Ultimately, the Government’s objectives of preventing harm to individual victims and of mitigating risks to public safety are likely sufficient to justify such a limited intrusion of privacy. The disclosure, therefore, would be both reasonable and lawful.

The objectives of the proposed Regulations would be to

Description

The proposed Regulations would

This approach authorizes the RCMP to proactively refer the range of individuals whom they currently refer under an MOU, provincial legislation and the Policy. For example, the RCMP could proactively disclose information about a person who was directly harmed by an incident such as an assault and anyone else at risk of harm, either because the person witnessed the incident, or will suffer some kind of harm because the incident involved a parent or other person with whom they have a personal relationship and on whom they rely for support. Information on persons such as neighbours at risk of harm from a similar incident because of their physical proximity could also be proactively disclosed. The proposed Regulations require the RCMP to use reasonable efforts to ensure that a person whose referral information has been disclosed to a VSO is informed of the disclosure.

“One-for-One” Rule

The “One-for-One” Rule does not apply to this proposal, as there is no change in administrative costs to business.

Small business lens

The small business lens does not apply to this proposal, as there are no costs to small business.

Consultation

The vast majority of the provincial and territorial victim services (members of the FPT Working Group on Victims of Crime) and non-governmental victim organizations and victim advocates (members of the National Victims of Crime Advisory Committee) who have been consulted endorse the proposed Regulations. The FPT Working Group on Victims of Crime endorsed the proposed Regulations during a conference call on April 22, 2013. Nongovernmental victim organizations and victim advocates were consulted by letter forwarded by electronic mail on June 5, 2013. The majority of the victim organizations and victim advocates that responded in writing endorsed the proposed Regulations.

The Federal Ombudsman for Victims of Crime has also endorsed the proposed Regulations.

Provincial and territorial victim organizations that were consulted include Victim Services and Crime Prevention (Ministry of Public Safety and Solicitor General of British Columbia), Victim Services and Crime Prevention (Solicitor General and Public Security of Alberta), Victim Services (Ministry of Justice of Saskatchewan), Manitoba Justice Victim Services (Department of Justice of Manitoba), Ontario Victim Services (Ministry of the Attorney General of Ontario), Bureau d’aide aux victimes d’actes criminels (ministère de la Justice du Québec), Victim Services (Community and Correctional Services Division, Department of Public Safety of New Brunswick), Victim Services (Court Services Division, Nova Scotia Department of Justice), Victim Services Program (Department of Justice of Newfoundland and Labrador), Victim Services (Department of Environment, Labour and Justice of Prince Edward Island), Community Justice and Victim Services (Department of Justice, Government of Yukon), Community Justice and Community Policing (Department of Justice, Government of the Northwest Territories) and Community Justice (Department of Justice, Government of Nunavut).

Non-governmental victim organizations and victim advocates who were consulted include Drayton Valley RCMP Victim Services, North Saskatchewan Victim Services, Ending Violence Association of British Columbia, St. John’s Status of Women Council, The Men’s Project, MADD (Mothers Against Drunk Driving) Canada, Ottawa Victim Services, the Canadian Resource Centre for Victims of Crime, the Native Women’s Association of the Northwest Territories, the Association québécoise Plaidoyer-Victimes, Priscilla de Villiers (victim advocate) and Wilma Derksen (victim advocate).

Certain organizations expressed concern that the proposed Regulations do not distinguish between situations in which a victim is unable to consent and those in which a victim has expressly refused consent. The organizations added that overriding a victim’s refusal to share personal information with a victim services organization may undermine the victim’s trust in the criminal justice system and have a chilling effect on the victim’s willingness to call upon or collaborate with the various components of the system.

Concern was also expressed that the proposed Regulations are too restrictive. In one organization’s view, victims incapable or unavailable to consent should be proactively referred whether or not the proactive referral would prevent a breach of the peace, a crime, loss of life, or physical or emotional harm. Another organization added that, in its view, the RCMP should be required to inform a victim of the disclosure of personal information resulting from a proactive referral.

With respect to the first concern, physical or emotional harm or economic loss or the risk of such harm or loss (rather than the distinction between victims who are unable to consent and those who refuse to consent) may be among the conditions that must be met to effect proactive referrals in a manner that is compliant with the Charter. However, the distinction between victims who are unable to consent and those who refuse to consent is addressed in the RCMP’s Operations Manual, which will be updated to reflect the proposed Regulations.

With respect to the concern that proactive referrals could cause victim distrust of the criminal justice system and have a chilling effect on their willingness to call upon or collaborate with the various components of the system, the proposed Regulations aim to prevent victims such as those under the control of an abuser from feeling isolated and, as a result, doubly victimized. Victims might feel even more isolated if they are not informed about the resources available to them in the criminal justice system or the status of the police investigation or the court case concerning them. The objective of the proposed Regulations is to facilitate access to information about assistance and services to victims in a timely manner. Thus, victims who receive relevant information about the services they require from the various components of the criminal justice system should have a better understanding of how the system works and should be willing to avail themselves of their services and cooperate with these components — and by the same token feel less isolated. With regard to the concern that the proposed Regulations are too restrictive, the proactive disclosure of a victim’s information to a VSO solely on the grounds of incapacitation or unavailability to consent would likely enhance the risk of non-compliance with the Charter.

With respect to the requirement to inform a victim of the disclosure of personal information resulting from a proactive referral, operational policy requires an RCMP member to advise the victim at the scene of the incident, crime or offence, that the victim’s personal information will be disclosed to a VSO in the course of a proactive referral. Where the RCMP is unable to advise the victim of the proactive referral at the scene, the RCMP will make reasonable efforts to ensure the victim is informed of the disclosure of personal information. The RCMP will work with the provinces to develop a procedure that provides that, in the absence of a notification to the victim of a proactive referral by the RCMP, the VSO which contacts the victim as a result of a proactive referral will advise the victim of the disclosure of personal information.

Concerns and recommendations of the Office of the Privacy Commissioner of Canada relating to the 2011 Privacy Impact Assessment for the RCMP Victim Services Program and the two components of the Program, namely the Policy and MOUs employed to authorize the RCMP to disclose the personal information of a victim to provincial government VSOs, were also taken into consideration in the drafting of the proposed Regulations.

Rationale

Victim services organizations assist victims in ways that prevent harm to individual victims and mitigate risks to public safety. For example, these organizations reduce risks by providing protection and support to victims and by helping them cope with the trauma resulting from an offence. As a result, victims are able to participate and collaborate better with the various components of the criminal justice system. To support victims effectively, victim services organizations need to receive crucial information to allow them to contact victims in a timely manner and provide them with key information and offer the organizations’ services. The proposed Regulations would remove barriers to assisting victims of crime and ensure more effective criminal justice processes by providing the RCMP with a clear, consistent and uniform approach for the sharing of victim information with victim services organizations across jurisdictions to which the RCMP provides police services. The proactive disclosure of carefully limited personal information by the RCMP to victim services organizations will support a more efficient and effective delivery of victim services and, ultimately, prevent harm to individual victims and mitigate risks to public safety.

The proposed Regulations are not expected to create additional costs as the conditions for proactive referrals set out in the Regulations and in the RCMP’s MOUs and the Policy are largely compatible; therefore, the RCMP would not significantly change its existing practices. The implementation of the Regulations will, however, have the benefit of formally entrenching in legislation conditions for proactive referrals in compliance with the Canadian Charter of Rights and Freedoms and the federal Privacy Act.

The regulatory proposal is not expected to have any impact on regulatory coordination or cooperation with other federal departments. The RCMP is involved in effecting proactive referrals to victim services organizations under MOUs, provincial legislation and the Policy. The RCMP would continue to make proactive referrals under the proposed Regulations.

Implementation, enforcement and service standards

The proposed Regulations would come into force six months after the day on which they are registered.

The amendments will require the RCMP to update manuals and procedures, to provide advice to RCMP members and to inform its stakeholders of the changes.

Stakeholders will be informed of the amendments to the Regulations via established FPT networks, such as the Canadian Association of Chiefs of Police, as well as through the RCMP Web site.

Contact

Angela Arnet Connidis
Director General
Public Safety Canada
Corrections Directorate
340 Laurier Avenue West
Ottawa, Ontario
K1A 0P8
Telephone: 613-991-2952
Fax: 613-949-6507
Email: Reg.consultation@ps-sp.gc.ca

PROPOSED REGULATORY TEXT

Notice is given that the Governor in Council, pursuant to subsection 21(1) (see footnote a) of the Royal Canadian Mounted Police Act (see footnote b), proposes to make the annexed Regulations Amending the Royal Canadian Mounted Police Regulations, 1988.

Interested persons may make representations with respect to the proposed Regulations within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Angela Arnet Connidis, Director General, Public Safety Canada, Corrections Directorate, 340 Laurier Avenue West, Ottawa, Ontario K1A 0P8 (tel.: 613-991-2952; fax: 613-949-6507; email: Reg.consultation@ps-sp.gc.ca).

Ottawa, February 6, 2014

JURICA ČAPKUN
Assistant Clerk of the Privy Council

REGULATIONS AMENDING THE ROYAL CANADIAN MOUNTED POLICE REGULATIONS, 1988

AMENDMENT

1. The Royal Canadian Mounted Police Regulations, 1988 (see footnote 4) are amended by adding the following after section 18:

REFERRAL TO VICTIM SERVICES ORGANIZATION

18.1 The following definitions apply in this section and in sections 18.2 to 18.4.

“referral information”, in respect of a person, means

“victim services organization” means an organization that

18.2 (1) In the course of the performance of their duties under paragraph 18(a) of the Act or at common law, a member who is a peace officer may disclose referral information in respect of a person to a victim services organization only if

(2) In the context of the disclosure of a person’s referral information, the member may disclose to the victim services organization information in respect of any third party who was involved in the crime, offence or other incident, including their identity and presumed location, but only to the extent necessary to effect the referral of the person without endangering anyone.

18.3 The Force shall make reasonable efforts to ensure that a person whose referral information is disclosed for the purpose of referring them to a victim services organization is made aware of the disclosure.

18.4 For greater certainty, nothing in section 18.2 or 18.3 is intended

COMING INTO FORCE

2. These Regulations come into force on the day that is six months after the day on which they are registered.

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