Vol. 148, No. 26 — December 17, 2014
SOR/2014-290 November 28, 2014
ROYAL CANADIAN MOUNTED POLICE ACT
Commissioner’s Standing Orders (Investigation and Resolution of Harassment Complaints)
The Commissioner of the Royal Canadian Mounted Police, pursuant to paragraphs 20.2(1)(l) (see footnote a) and 21(2)(l) (see footnote b) and (m)(see footnote c) and sections 39.1 (see footnote d) and 39.2 (see footnote e) of the Royal Canadian Mounted Police Act (see footnote f), makes the annexed Commissioner’s Standing Orders (Investigation and Resolution of Harassment Complaints).
Ottawa, November 25, 2014
Commissioner of the Royal Canadian Mounted Police
COMMISSIONER’S STANDING ORDERS (INVESTIGATION AND RESOLUTION OF HARASSMENT COMPLAINTS)
1. The following definitions apply in these Standing Orders.
« Loi »
- “Act” means the Royal Canadian Mounted Police Act.
« harcèlement »
- “harassment” has the same meaning as in the Treasury Board policy on harassment established under paragraph 11.1(1)(i) of the Financial Administration Act.
- “harassment complaint investigation and resolution process”
« processus d’enquête et de règlement des plaintes d’harcèlement »
- “harassment complaint investigation and resolution process” means any of the administrative actions, decisions or processes provided for by the Act, the Royal Canadian Mounted Police Regulations, 2014, the Commissioner’s Standing Orders or the Force’s policies relating to the investigation and resolution of a harassment complaint.
- “informal resolution process”
« processus de règlement informel »
- “informal resolution process” means a process used by the parties to resolve a complaint informally, and includes the informal conflict management system established under section 30.2 of the Act.
« parties »
- “parties” means the complainant and the respondent in a complaint that is being dealt with under the harassment complaint investigation and resolution process.
« défendeur »
- “respondent” means a member whose conduct is the subject of a harassment complaint submitted under these Standing Orders.
2. (1) A complaint by a member that they have been harassed by another member must be submitted in accordance with the harassment complaint investigation and resolution process within one year of the last incident of harassment alleged in the complaint.
Extension of time limit
(2) The decision maker may, at the request of the complainant, extend the time limit in exceptional circumstances.
3. (1) The decision maker in respect of a complaint is
- (a) the person designated by the Commissioner; or
- (b) a conduct board appointed under subsection 43(1) of the Act, if one has been appointed.
Designated as conduct authority
(2) For the purpose of subsection 2(3) of the Act, the decision maker is designated as a conduct authority in respect of the respondent.
Informal resolution process
4. (1) An informal resolution process is available to the parties unless, in respect of the respondent, a hearing has been initiated under subsection 41(1) of the Act or a conduct measure has been imposed under 42(1) of the Act.
Communications confidential and without prejudice
(2) Any communications that pass among persons involved in an informal resolution process during that process are confidential and without prejudice to the parties and must not be disclosed unless the disclosure is
- (a) agreed to by the parties;
- (b) required by law;
- (c) required for the purpose of reaching or carrying out an agreement made during the process; or
- (d) required to protect the health or safety of any person.
Investigation under subsection 40(1) of Act
5. (1) Subject to these Standing Orders, any investigation that is made as part of a harassment complaint investigation and resolution process is deemed to be an investigation made under subsection 40(1) of the Act.
Provision of statement
(2) The investigator must provide each party with a copy of the party’s statement in the format recorded by the investigator. The parties may, within seven days after the day on which the party receives the copy of the statement, dispute the accuracy of the statement to the investigator unless, at a party’s request, the decision maker extends the time limit in exceptional circumstances.
Response of parties
(3) The investigator must provide each party with a copy of the preliminary investigation report. The parties may, within seven days after the day on which the party receives the copy, provide a response to the investigator unless, at a party’s request, the decision maker extends the time limit in exceptional circumstances.
Determination in respect of time limit
6. (1) The decision maker must decide in writing if a complaint was submitted within the period set out in section 2.
Role of decision maker
(2) If the complaint was submitted within the period, and once the decision maker has sufficient information to make a decision, the decision maker must
- (a) initiate a hearing under subsection 41(1) of the Act; or
- (b) decide in writing if the respondent has, on a balance of probabilities, contravened the Code of Conduct set out in the schedule to the Royal Canadian Mounted Police Regulations, 2014.
Imposition of measures
(3) If the decision maker decides, under paragraph (2)(b), that the respondent has contravened the Code of Conduct, they may impose one or more of the conduct measures referred to in subsection 5(1) of the Commissioner’s Standing Orders (Conduct).
(4) The decisions referred to in subsection (1), paragraph (2)(b) and subsection (3) are final.
Service of decision — complainant
(5) A copy of the decisions, including the written decision of a conduct board that is a decision maker for the purpose of these Standing Orders, must be served on the complainant and include a statement of the decision maker’s findings, reasons for the decision and whether any conduct measures are imposed.
Service of decision — respondent
(6) A copy of the decisions must be served on the respondent and include a statement of the decision maker’s findings, reasons for the decision and a statement setting out any conduct measures that may have been imposed.
Redress for certain written decisions
7. (1) A complainant who is aggrieved by a written decision referred to in subsection 6(1) and paragraph 6(2)(b) or by the written decision of a conduct board that is a decision maker for the purpose of these Standing Orders may seek redress by means of an appeal of the decision in accordance with Part 3 of the Commissioner’s Standing Orders (Grievances and Appeals).
Redress — complainant
(2) A complainant who is aggrieved by any decision, act or omission made in the harassment complaint investigation and resolution process that leads to one of the written decisions referred to in subsection (1) may seek redress by means of an appeal the decision in accordance with Part 3 of the Commissioner’s Standing Orders (Grievances and Appeals).
Redress — respondent
(3) A respondent who is aggrieved by any decision, act or omission made in the harassment complaint investigation and resolution process that leads to one of the written decisions set out in subsection (1) may seek redress by means of an appeal of the decision in accordance with section 45.11 of the Act.
Effect of appeal
(4) An appeal made under this section does not stay the execution of any conduct measure imposed under subsection 6(3).
Coming into force
8. These Standing Orders come into force on the day on which they are registered.
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Commissioner’s Standing Orders.)
The Enhancing Royal Canadian Mounted Police Accountability Act (the Accountability Act), which received Royal Assent on June 19, 2013, introduces significant changes to the Royal Canadian Mounted Police Act (the Act) to support the efforts of the Royal Canadian Mounted Police (RCMP) to support law enforcement operations through increased accountability in respect of the manner in which the force is administered. The changes to the Act created a requirement to review the RCMP’s Commissioner’s Standing Orders (CSOs) and the Royal Canadian Mounted Police Regulations, 1988 (the 1988 Regulations) to ensure that they align with the authorities, requirements, functions and powers provided by the Accountability Act. As a result of this review, the 1988 Regulations will be repealed and replaced with the Royal Canadian Mounted Police Regulations, 2014 (the 2014 Regulations) and 20 existing CSOs (see footnote 1) will be repealed and consolidated into five new CSOs:
- Investigation and Resolution of Harassment Complaints
- Employment Requirements
- General Administration
- Grievances and Appeals
The purpose of this Regulatory Impact Analysis Statement (RIAS) is to provide information in respect of the CSOs (Investigation and Resolution of Harassment Complaints). The other four CSOs are each addressed in a separate RIAS. The five CSOs, subsections 87(1), (3) and (4) of the Accountability Act, and the 2014 Regulations must all come into force at the same time in order to ensure the smooth and efficient implementation of the totality of the new systems created by the new statutory regime.
In 2007, the government-appointed Task Force on Governance and Cultural Change in the RCMP (see footnote 2) provided recommendations relating to organizational structure, oversight, accountability, leadership, workload, employee wellness, and management. Also in 2007, the Department of Public Safety and Emergency Preparedness commenced a strategy to enhance the RCMP public complaints process in response to the report on the events relating to Maher Arar. (see footnote 3) In addition, beginning in late 2011, serving and retired members of the Force began to raise concerns in respect of harassment in the RCMP and challenged the Force’s commitment to providing employees with a safe, healthy, respectful and harassment-free workplace. The cumulative effect of these events resulted in the Government’s direction to assess the feasibility of proceeding with amendments to the legislative suite governing the RCMP in an effort to begin to transform the manner in which it managed RCMP members, and to enhance the organization’s level of responsibility and accountability, both internally and externally. Government support for this level of transformation resulted in the tabling of the Accountability Act on June 20, 2012, which was consequently subject to extensive examination during the parliamentary process.
The Accountability Act is based on two former bills that were introduced during the third session of the 40th Parliament in June 2010. It contains the legislative amendments found in former Bill C-38 — Ensuring the Effective Review of RCMP Civilian Complaints Act (with minor technical amendments) and certain human resources management components of former Bill C-43 — RCMP Modernization Act. Both these bills died on the Order Paper when an election was called in March 2011.
Although the Accountability Act received Royal Assent in June 2013, implementation is still subject to the coming into force of those parts that provide the authorities for the amended human resource management and administrative processes. As a consequence, the next step is to align the statutory instruments that are provided for by the Act, specifically the Regulations and the CSOs, with the new authorities, requirements, functions and powers provided for in the Accountability Act. All of the statutory components are in turn supported by policies, process maps, guidebooks, and training materials.
Subsection 2(2) of the Act defines CSOs as “the rules made by the Commissioner under any provision of this Act empowering the Commissioner to make rules.” Simply put, the CSOs are statutory instruments created under the Commissioner’s authority which establish the essential components that are necessary for the implementation of various procedures. In particular, these CSOs establish an RCMP-specific system to respond to incidents of harassment, by creating streamlined procedures for the investigation and resolution of harassment complaints, including access to an informal resolution process. The new CSOs have been designed to overcome employees’ concerns that the existing process is confusing, takes too long to complete, and does not hold parties accountable through appropriate application of available consequences. The process created under the CSOs will apply to member complainants and respondents, and will contribute to establishing safe, healthy and respectful workplaces for all RCMP personnel.
The CSOs on Investigation and Resolution of Harassment Complaints consolidate and standardize processes, procedures, and oversight of the manner in which the RCMP responds to harassment complaints in one administrative structure, and are intended to overcome existing challenges faced by the RCMP when addressing harassment complaints. Currently, the RCMP is subject to the requirements of the Treasury Board Policy on Harassment Prevention and Resolution, by virtue of the Financial Administration Act. Concurrently, the RCMP must also comply with the procedures established under Part IV of the RCMP Act in respect of responding to incidents of alleged member misconduct. The challenge in attempting to apply these two systems to a harassment complaint is that while the Treasury Board Policy is focused on preventing and informally resolving incidents that could become or be perceived as harassment, with a view to rebuilding workplace relationships, the Part IV process requires a member to defend him or herself against allegations brought by the employer in respect of contraventions of the Code of Conduct. There are no opportunities for informal resolution or relationship building within the RCMP conduct process, and the opportunities for complainants to play a role in that process are extremely limited. On the other hand, there are no authorities for the Treasury Board Policy to apply the RCMP conduct process if harassment is determined to have occurred, which means that the RCMP is faced with a choice when presented with a harassment complaint — either treat it as harassment under the Policy, or under Part IV. This situation has left employees, be they complainants or respondents, frustrated and skeptical about the RCMP’s commitment to providing a respectful workplace.
The Accountability Act addresses these misalignments by providing the Commissioner with the specific authority to “establish procedures to investigate and resolve disputes relating to alleged harassment by a member,” (see footnote 4) and by exempting the RCMP from compliance with Treasury Board policies and directives regarding the investigation and resolution of harassment complaints. The Force remains bound by the Treasury Board requirements to prevent incidents of harassment through early resolution, training and other preventative measures, and for remediating the workplace following the application of the new harassment investigation and resolution process. These CSOs will provide the framework within which complaints of harassment will be investigated and resolved. The following components of the RCMP’s Investigation and Resolution of Harassment Complaints process are included in the CSOs:
- The inclusion of harassment as a contravention of the Code of Conduct for public service employees and the Code of Conduct provided under the 2014 Regulations.
- A single, RCMP-specific, comprehensive regime for the investigation and resolution of harassment complaints based on a modified conduct investigation process (that respects and incorporates the requirements of Part IV of the RCMP Act and the relationship repair and improvement components of the Treasury Board Harassment Policy).
- A centralized, national intake office responsible for ensuring complainants’ submissions meet the minimum requirements to activate the harassment investigation and resolution process and for providing support and advice to divisional harassment advisors.
- The elimination of the “screening process” that has been the subject of many complaints, replaced with the authority for a decision maker to determine appropriate next steps to assist the parties in moving towards informal resolution or mandating an investigation in a timely manner.
- The opportunity for parties to pursue informal resolution of a complaint until the making of the final decision. The informal resolution process is supported by a professionalized informal conflict management system.
- The authority for the decision maker to review complaints, support parties in seeking informal resolution, mandate and administer an investigation, determine if harassment has occurred, and impose conduct measures (where appropriate) on member respondents. The often heard complaint that the RCMP has used Part IV to “shield” members from repercussions arising from founded harassment will no longer be valid.
- The authority for delegated managers for public service employees to impose disciplinary measures after a finding of harassment remains in place.
- Greater transparency in the harassment complaint process and improved communication with complainants, including
- — Providing parties with the opportunity to review and provide submissions on the preliminary harassment investigation report.
- — Advising the complainant of the results of the investigation and if any measures were imposed on the member.
- A simplified appeal process for member complainants that will include review by the External Review Committee and access to the Commissioner for a final and binding decision to reduce the potential time frame until final disposition. Respondents may access the appeal process provided under Part IV of the Act, or, if that process does not apply, also pursue an appeal as provided for under the CSOs.
- A choice for public service employees to either submit a complaint through the RCMP harassment complaint process, or through a grievance process provided to public service employees under a collective agreement or Treasury Board policy. Members will not have this choice, however. Members are expected to raise harassment complaints through the process established under the CSOs.
As noted, while the CSOs on Investigation and Resolution of Harassment Complaints will be an important resource for those who administer the new framework, they form part of a systemic approach to the prevention and resolution of inappropriate workplace behaviours in combination with the awareness, prevention and workplace recovery components that are dealt with under the RCMP’s Respectful Workplace Program, the Gender and Respect Action Plan and more general human resources programs. In addition, at key junctures in an employee’s career, training on harassment, diversity, and ethical behaviour are core components of personal development.
The “One-for-One” Rule does not apply to this proposal, as there are no changes 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 businesses.
The RCMP has conducted consultations in various forms with internal and external stakeholders affected by the proposed legislative amendments. In regard to the development of the new human resource management and administrative processes created by the amendments to the Act, beginning in June 2011, the RCMP created internal working groups, consisting of applicable subject matter experts, member and employee representatives, and divisional service providers and managers, to collaboratively identify options for the establishment of the form and structures for the new processes, procedures, policies, and training. These working groups played a key role in determining the contents of each of the CSOs, as even following the cessation of the working groups in late 2013, draft products, such as the proposed provisions for the 2014 Regulations, the Code of Conduct, policies, guidebooks and the CSOs were shared with the Staff Relations Representative Program, the official labour relations program of the RCMP, public service employee bargaining agents, and internal and external subject matter experts, for review and feedback.
To offer further opportunities for all employees to provide input, the RCMP created an internal Web site in June 2011, in order to provide information and updates on the implementation of the Accountability Act and how it could impact the Force and its employees. The site also provided email access to the RCMP team tasked with coordinating the response to the Accountability Act, and several thousand RCMP personnel have submitted their thoughts, considerations, concerns and suggestions throughout the course of building the necessary infrastructure for the implementation of the Act.
The legislative framework calls for a department to update any related regulations when its enabling Act is revised. As a result of the enhanced authorities in the RCMP Act, new CSOs on Investigation and Resolution of Harassment Complaints must be introduced to include the terms, procedures and processes that are necessary to create an RCMP-specific administrative infrastructure to manage and resolve harassment complaints. The new CSOs will have the same coming-into-force date as subsections 87(1), (3) and (4) of the Accountability Act. Although there are no net additional costs, the supporting CSOs and the 2014 Regulations are essential and crucial elements of modernizing operations and streamlining practices to achieve enhanced levels of internal and external accountability for the manner in which the RCMP administers its internal procedures.
Implementation, enforcement and service standards
The 2014 Regulations and the revised CSOs will provide the additional authorities and procedural details that are necessary to complete the implementation and functionality of the processes and systems established by the Accountability Act. On the same day as their coming into force, a series of supporting policies will be available to provide further information that is more administrative in nature and that does not require the level of legislative authority that is provided for under a statutory instrument. The following business documents will be available to support the Investigation and Resolution of Harassment Complaints CSOs: Investigation and Resolution of Harassment Complaints Policy; Investigation and Resolution of Harassment Complaints Process Map; Investigation and Resolution of Harassment Complaints Process Guide; and the Investigation and Resolution of Harassment Complaints National Guidebook.
Service standards in respect of the application of the new procedures will be in place following the coming into force of the Act and will be refined in the coming years based on lessons learned and best practices. The RCMP will conduct a review of the adequacy of resources and the evaluation of the modernized human resource management and administrative processes three to five years after the date of implementation for consideration by RCMP senior executives and Government.
Chief Superintendent Michael O’Rielly
Workplace Responsibility Branch
Royal Canadian Mounted Police
- Footnote a
S.C. 2013, c. 18, s. 13
- Footnote b
S.C. 2013, c. 18, s. 14(2)
- Footnote c
S.C. 2013, c. 18, s. 14(2)
- Footnote d
S.C. 2013, c. 18, s. 29
- Footnote e
S.C. 2013, c. 18, s. 29
- Footnote f
R.S., c. R-10
- Footnote 1
The 20 CSOs to be repealed are: Appropriate Officer; Authorized Passengers; Certificates of Service; Disciplinary Action; Duties of Members; Gifts or Sponsorship; Grievances; Loss of Basic Requirements; Health Assessment; Lounges; Material Management; Medical Boards; Messes; Practice and Procedure; Precedence; Probationary Member; Public Complaints; Qualifications; Representation; and Sponsorship Agreements.
- Footnote 2
A Matter of Trust: Report of the Independent Investigator into Matters Relating to RCMP Pension and Insurance Plans (Canada: 2007) [“Brown Report”]; David Brown, Linda Black, Richard Drouin, Larry Murray, and Norman D. Inkster, Rebuilding the Trust: Report on the Task Force on Governance and Cultural Change in the RCMP (Ottawa: Minister of Public Safety and President of the Treasury Board, December 14, 2007) [“Brown Task Force Report”].
- Footnote 3
Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar. Report of the Events Relating to Maher Arar: Analysis and Recommendations (Ottawa: Public Works and Government Services Canada, 2006) [“O’Connor Inquiry”].
- Footnote 4
Paragraph 20.1(2)(l) RCMP Act as amended.