Enhancing Royal Canadian Mounted Police Accountability Act (S.C. 2013, c. 18)
Full Document:
Assented to 2013-06-19
Marginal note:R.S., c. 8 (2nd Supp.), s. 16; 1994, c. 26, s. 64(F)
24. Section 36 of the Act is replaced by the following:
Rules
Marginal note:Rules
36. Subject to the provisions of this Act and the regulations, the Commissioner may make rules governing the presentation and consideration of grievances under this Part, including rules
(a) prescribing persons under the Commissioner’s jurisdiction or classes of such persons to constitute the levels in the grievance process; and
(b) specifying, for the purpose of subsection 31(4), limitations, in the interests of security or the protection of privacy of persons, on the right of a member presenting a grievance to be granted access to information relating to the grievance.
25. The Act is amended by adding the following after section 36:
Recommendation for Deputy Commissioner’s Discharge
Marginal note:Recommendation for Deputy Commissioner’s discharge
36.1 If the Commissioner recommends under paragraph 20.2(1)(d), (f), (h) or (j) that a Deputy Commissioner is to be discharged from the Force, the recommendation is not to be forwarded to the Governor in Council until the expiry of the time within which a grievance may be presented under this Part. If a grievance is presented, the recommendation is to be forwarded only if the grievance is denied at the final level.
Marginal note:R.S., c. 8 (2nd Supp.), s. 16
26. The headings before section 37 of the Act are replaced by the following:
PART IVCONDUCT
Purposes of Part
Marginal note:Purposes
36.2 The purposes of this Part are
(a) to establish the responsibilities of members;
(b) to provide for the establishment of a Code of Conduct that emphasizes the importance of maintaining the public trust and reinforces the high standard of conduct expected of members;
(c) to ensure that members are responsible and accountable for the promotion and maintenance of good conduct in the Force;
(d) to establish a framework for dealing with contraventions of provisions of the Code of Conduct, in a fair and consistent manner, at the most appropriate level of the Force; and
(e) to provide, in relation to the contravention of any provision of the Code of Conduct, for the imposition of conduct measures that are proportionate to the nature and circumstances of the contravention and, where appropriate, that are educative and remedial rather than punitive.
Responsibilities
Marginal note:R.S., c. 8 (2nd Supp.), s. 16
27. The portion of section 37 of the Act before paragraph (a) is replaced by the following:
Marginal note:Responsibilities
37. It is the responsibility of every member
Marginal note:R.S., c. 8 (2nd Supp.), s. 16
28. The portion of subsection 39(1) of the Act before paragraph (a) is replaced by the following:
Marginal note:Contravention of Code of Conduct
39. (1) Every member who is alleged to have contravened a provision of the Code of Conduct may be dealt with under this Act either in or outside Canada,
Marginal note:R.S., c. 8 (2nd Supp.), s. 16; 1990, c. 8, s. 66(1); 2002, c. 8, par. 182(1)(z.9)
29. Sections 40 to 45.14 of the Act are replaced by the following:
Marginal note:Rules — conduct measures
39.1 The Commissioner shall make rules
(a) establishing the conduct measures, other than dismissal or recommendation for dismissal, that may be taken in respect of contraventions of provisions of the Code of Conduct and specifying which of those conduct measures may be imposed by any class of conduct authorities; and
(b) governing appeals under this Part, including rules
(i) prescribing the time within which an appeal may be made and providing for extensions of that time, and
(ii) respecting the practice and procedure for the appeals.
Marginal note:Rules — investigations
39.2 The Commissioner may make rules
(a) respecting the investigation of contraventions of provisions of the Code of Conduct; and
(b) respecting the exercise of the conduct authorities’ powers under subsection 42(1).
Marginal note:Investigation
40. (1) If it appears to a conduct authority in respect of a member that the member has contravened a provision of the Code of Conduct, the conduct authority shall make or cause to be made any investigation that the conduct authority considers necessary to enable the conduct authority to determine whether the member has contravened or is contravening the provision.
Marginal note:Member not excused from answering
(2) In any investigation under subsection (1), no member shall be excused from answering any question relating to the matter being investigated when required to do so by the person conducting the investigation on the grounds that the answer to the question may tend to criminate the member or subject the member to any criminal, civil or administrative action or proceeding.
Marginal note:Answer not receivable
(3) No answer or statement made in response to a question described in subsection (2) shall be used or receivable in any criminal, civil or administrative action or proceeding, other than a proceeding under this Part regarding an allegation that with intent to mislead the member gave the answer or statement knowing it to be false.
Marginal note:Definitions
40.1 The following definitions apply in sections 40.2 to 40.8.
“document”
« document »
“document” means any medium on which is recorded or marked anything that is capable of being read or understood by an individual or a computer system or other device.
“justice”
« juge de paix »
“justice” has the meaning assigned by section 2 of the Criminal Code.
“night”
« nuit »
“night” has the meaning assigned by section 2 of the Criminal Code.
“person”
« personne »
“person” has the meaning assigned by section 2 of the Criminal Code.
Marginal note:Authority to issue warrant
40.2 (1) On ex parte application that has been approved by an officer designated by the Commissioner for the purposes of this section, a justice may issue a warrant if the justice is satisfied by information on oath that there are reasonable grounds to believe that there is in any receptacle or place not under the control of the Force anything that will afford evidence with respect to the contravention of a provision of the Code of Conduct.
Marginal note:Dwelling-house
(2) The application must indicate whether or not the place is a dwelling-house.
Marginal note:Powers under warrant
(3) The warrant may authorize a peace officer, and any other individual named in the warrant, to enter and search the place and to seize anything specified in the warrant, subject to any conditions specified in the warrant.
Marginal note:Telewarrant provisions to apply
(4) A warrant may be issued under this section by telephone or other means of telecommunication on application submitted by a peace officer by one of those means and section 487.1 of the Criminal Code applies for that purpose with any modifications that the circumstances require.
Marginal note:Execution of search warrant
(5) A warrant issued under this section shall be executed by day, unless
(a) the justice is satisfied that there are reasonable grounds for it to be executed by night;
(b) the reasonable grounds are included in the information; and
(c) the warrant authorizes that it be executed by night.
Marginal note:Operation of computer system and copying equipment
(6) A person authorized under this section to search a computer system in a place for data may
(a) use or cause to be used any computer system at the place to search any data contained in or available to the computer system;
(b) reproduce or cause to be reproduced any data in the form of a print-out or other intelligible output;
(c) seize the print-out or other output for examination or copying; and
(d) use or cause to be used any copying equipment at the place to make copies of the data.
Marginal note:Receipt and report
(7) A person who seizes a thing under this section shall give a receipt to the person from whom the thing was seized and shall as soon as feasible, make a report of the seizure to a justice.
Marginal note:Return or detention
(8) If a report of the seizure is made to the justice, the justice shall,
(a) if the lawful owner or person who is lawfully entitled to possession of the thing seized is known, order it to be returned to that owner or person, unless the person having custody of the thing seized satisfies the justice that the detention of the thing seized is required for the purposes of any proceeding under this Part; or
(b) if the person having custody of the thing seized satisfies the justice that the thing seized should be detained, order that it be detained in the Force’s care until the conclusion of the proceedings.
Marginal note:Application for order of return
(9) On application by the person from whom a thing was seized and on three clear days notice to the Commissioner, a justice may make an order for the release of the thing to the person if the justice is satisfied that the thing is no longer necessary for the purposes of the investigation or any proceeding under this Part arising from the investigation.
Marginal note:Storage and removal
(10) A thing seized under this section may be stored in the place where it was seized or it may, at the discretion of a peace officer, be removed to any other place for storage.
Marginal note:Production order
40.3 (1) On ex parte application, a justice may order a person to produce to a peace officer named in the order a document that is a copy of a document that is in their possession or control when they receive the order, or to prepare and produce a document that contains data that is in their possession or control at that time.
Marginal note:Conditions for making order
(2) Before making the order, the justice must be satisfied by information on oath that there are reasonable grounds to believe that the document will afford evidence with respect to the contravention of a provision of the Code of Conduct.
Marginal note:Limitation
(3) An order shall not be made under subsection (1) requiring a member who is under investigation for an alleged contravention of a provision of the Code of Conduct to produce a document or to prepare and produce a document that relates to that alleged contravention.
Marginal note:Conditions
40.4 (1) An order made under subsection 40.3(1) may contain any conditions that the justice considers appropriate including conditions to protect a privileged communication between a person who is qualified to give legal advice and their client.
Marginal note:Effect of order
(2) The order has effect throughout Canada.
Marginal note:Power to revoke or vary order
(3) On ex parte application made by a peace officer, the justice who made the order may, on the basis of an information on oath, revoke or vary the order. The peace officer shall give notice of the revocation or variation to the person who is subject to the order as soon as feasible.
Marginal note:Particulars — production orders
40.5 An order made under subsection 40.3(1) shall require a person to produce the document to a peace officer named in the order within the time, at the place and in the form specified in the order.
Marginal note:Probative force of copies
40.6 Every copy of a document produced under subsection 40.3(1) is admissible in evidence in proceedings under this Part on proof by affidavit that it is a true copy and has the same probative force as the document would have if it were proved in the ordinary way.
Marginal note:Application for exemption
40.7 (1) A person named in an order made under subsection 40.3(1) may, before the order expires, apply in writing to the justice who issued the order, or to any other justice, for an exemption from the requirement to produce or to prepare and produce any document.
Marginal note:Notice
(2) A person may only make the application if they give notice of their intention to do so to the peace officer named in the order to whom the document is to be produced within 15 days after the day on which the order is made.
Marginal note:Order suspended
(3) The execution of the order is suspended until a final decision is made in respect of the application.
Marginal note:Exemption
(4) The justice may grant the exemption if the justice is satisfied that
(a) the document, data or information would disclose information that is privileged or otherwise protected from disclosure by law;
(b) it is unreasonable to require the applicant to produce the document, data or information; or
(c) the document, data or information is not in the possession or control of the applicant.
Marginal note:Self-incrimination
40.8 No one is excused from complying with an order made under subsection 40.3(1) on the grounds that the document that they are required to produce may tend to criminate them or subject them to any criminal, civil or administrative action or proceeding. However, a document that an individual is required to prepare shall not be used or received in evidence against them in a criminal proceeding that is subsequently instituted against them, other than a prosecution for an offence under section 132, 136 or 137 of the Criminal Code.
Marginal note:Notice to designated officer
41. (1) If it appears to a conduct authority in respect of a member that the member has contravened a provision of the Code of Conduct and the conduct authority is of the opinion that the conduct measures provided for in the rules are insufficient, having regard to the gravity of the contravention and to the surrounding circumstances, the conduct authority shall initiate a hearing into the alleged contravention by notifying the officer designated by the Commissioner for the purpose of this section of the alleged contravention.
Marginal note:Limitation or prescription period
(2) A hearing shall not be initiated by a conduct authority in respect of an alleged contravention of a provision of the Code of Conduct by a member after the expiry of one year from the time the contravention and the identity of that member as the one who is alleged to have committed the contravention became known to the conduct authority that investigated the contravention or caused it to be investigated.
Marginal note:Conduct authority’s powers
42. (1) If a conduct authority in respect of a member is satisfied, on a balance of probabilities, that the member has contravened a provision of the Code of Conduct and the conduct authority is of the opinion that the conduct measures provided for in the rules are sufficient, having regard to the gravity of the contravention and to the surrounding circumstances, the conduct authority may impose any one or more of those conduct measures against the member.
Marginal note:Limitation or prescription period
(2) Conduct measures shall not be imposed under subsection (1) in respect of the contravention after the expiry of one year from the time the contravention and the identity of that member became known to the conduct authority that investigated the contravention or caused it to be investigated.
Conduct Boards
Marginal note:Appointment
43. (1) On being notified under subsection 41(1) of an alleged contravention of a provision of the Code of Conduct by a member, the officer designated for the purpose of that subsection shall, subject to the regulations, appoint one or more persons as members of a conduct board to decide whether the member contravened the provision.
Marginal note:Notice
(2) As soon as feasible after making the appointment or appointments, the conduct authority who initiated the hearing shall serve the member with a notice in writing informing the member that a conduct board is to determine whether the member contravened a provision of the Code of Conduct.
Marginal note:Contents of notice
(3) The notice may allege more than one contravention of any provision of the Code of Conduct and is to contain
(a) a separate statement of each alleged contravention;
(b) a statement of the particulars of the act or omission constituting each alleged contravention;
(c) the names of the members of the conduct board; and
(d) a statement of the member’s right to object to the appointment of any person as a member of the conduct board as provided in section 44.
Marginal note:Statement of particulars
(4) The statement of particulars contained in the notice is to contain sufficient details, including, if practicable, the place and date of each contravention alleged in the notice, to enable the member who is served with the notice to identify each contravention in order that the member may prepare a response and direct it to the occasion and events indicated in the notice.
Marginal note:Objection to appointment
44. (1) Within seven days after the day on which a member is served with a notice under subsection 43(2), the member may object in writing to the designated officer referred to in subsection 43(1) to the appointment of any person as a member of the conduct board, and the designated officer shall, on receiving the objection, decide whether to reject the objection or to allow the objection and appoint another person as a member of the board.
Marginal note:Reasons for objection
(2) The objection must contain reasons for the objection.
Marginal note:Notice
(3) After the designated officer makes a decision under subsection (1) with respect to an objection, the designated officer shall serve the member making the objection with a notice in writing setting out the decision and the reasons for it, and, if the objection is allowed, the designated officer shall
(a) appoint another person as a new member of the conduct board; and
(b) set out in the notice
(i) the name of the other person, and
(ii) a statement of the member’s right to object to the appointment of the other person as provided in this section.
Marginal note:Objection to new person
(4) The provisions of this section apply, with any modifications that the circumstances require, with respect to the appointment of a person under subsection (3) as though the notice setting out the name of the person were a notice referred to in subsection (1).
Marginal note:Role of conduct board
45. (1) The role of the conduct board is to decide whether or not each allegation of a contravention of a provision of the Code of Conduct contained in the notice served under subsection 43(2) is established on a balance of probabilities.
Marginal note:Powers
(2) A conduct board has, in relation to the case before it, the powers conferred on a board of inquiry, in relation to the matter before it, by paragraphs 24.1(3)(a) to (c).
Marginal note:Decision in writing
(3) The conduct board’s decision must be recorded in writing and include a statement of the conduct board’s findings on questions of fact material to the decision, reasons for the decision and a statement of the conduct measure, if any, imposed under subsection (4).
Marginal note:Conduct measures
(4) If a conduct board decides that an allegation of a contravention of a provision of the Code of Conduct by a member is established, the conduct board shall impose any one or more of the following conduct measures on the member, namely,
(a) recommendation for dismissal from the Force, if the member is a Deputy Commissioner, or dismissal from the Force, if the member is not a Deputy Commissioner,
(b) direction to resign from the Force and, in default of resigning within 14 days after being directed to do so, recommendation for dismissal from the Force, if the member is a Deputy Commissioner, or dismissal from the Force, if the member is not a Deputy Commissioner, or
(c) one or more of the conduct measures provided for in the rules.
Hearing
Marginal note:Parties
45.1 (1) The parties to a hearing initiated under subsection 41(1) are the conduct authority who initiated it and the member whose conduct is the subject of the hearing.
Marginal note:Hearing in public
(2) The hearing shall be held in public but the conduct board, on its own initiative or at the request of any party, may order that the hearing or any part of it is to be held in camera if it is of the opinion
(a) that information, the disclosure of which could reasonably be expected to be injurious to the defence of Canada or any state allied or associated with Canada or to the detection, prevention or suppression of subversive or hostile activities, will likely be disclosed during the course of the hearing;
(b) that information, the disclosure of which could reasonably be expected to be injurious to law enforcement, will likely be disclosed during the course of the hearing;
(c) that information respecting a person’s financial or personal affairs, if that person’s interest or security outweighs the public’s interest in the information, will likely be disclosed during the course of the hearing; or
(d) that it is otherwise required by the circumstances of the case.
Marginal note:Representation of witnesses
(3) The conduct board shall permit any person who gives evidence at the hearing to be represented by legal counsel or a representative.
Marginal note:Restriction
(4) Despite subsection 45(2), but subject to subsection (5), the conduct board is not authorized to receive or accept any evidence or other information that would be inadmissible in a court of law by reason of any privilege under the law of evidence.
Marginal note:Witness not excused from testifying
(5) In the hearing, no witness shall be excused from answering any question relating to the case before the conduct board when required to do so by the conduct board on the grounds that the answer to the question may tend to criminate the witness or subject the witness to any criminal, civil or administrative action or proceeding.
Marginal note:Answer not receivable
(6) If the witness is a member, no answer or statement made in response to a question described in subsection (5) shall be used or receivable against the witness under any proceeding under Part IV regarding an allegation of a contravention of a provision of the Code of Conduct by the witness, other than a proceeding regarding an allegation that with intent to mislead the witness gave the answer or statement knowing it to be false.
Marginal note:Order restricting publication
(7) The conduct board may, on its own initiative or at the request of any person, make an order directing that any of the following information shall not be published in any document or broadcast or transmitted in any way:
(a) information that could identify a complainant, a witness or a person under the age of 18; and
(b) information disclosed during any part of the hearing held in camera.
Marginal note:Absence of member
(8) The conduct board may conduct the hearing in the absence of the member whose conduct is the subject of the hearing in the circumstances set out in the rules.
Marginal note:Medical examination
(9) If the member whose conduct is the subject of the hearing indicates that they are unable to attend the hearing for medical reasons, the conduct board may direct the member to undergo a medical examination or an assessment by a qualified person specified by the conduct board to determine if the member is unable to participate in the hearing for medical reasons. If the member fails to undergo the medical examination or assessment, the conduct board may conduct the hearing in the absence of the member.
Appeal
Marginal note:Appeal to Commissioner — conduct board’s decision
45.11 (1) A member who is the subject of a conduct board’s decision or the conduct authority who initiated the hearing by the conduct board that made the decision may, within the time provided for in the rules, appeal the decision to the Commissioner in respect of
(a) any finding that an allegation of a contravention of a provision of the Code of Conduct by the member is established or not established; or
(b) any conduct measure imposed in consequence of a finding referred to in paragraph (a).
Marginal note:Former member
(2) Every reference in subsection (1) to a member includes a former member for the purposes of any appeal with respect to a dismissal from the Force.
Marginal note:Appeal to Commissioner — conduct authority’s decision
(3) A member who is the subject of a conduct authority’s decision may, within the time provided for in the rules, appeal the decision to the Commissioner in respect of
(a) any finding that an allegation of a contravention of a provision of the Code of Conduct by the member is established; or
(b) any conduct measure imposed in consequence of a finding that an allegation referred to in paragraph (a) is established.
Marginal note:Grounds of appeal
(4) An appeal lies to the Commissioner on any ground of appeal.
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