Canada (Royal Canadian Mounted Police Public Complaints Commission) v. Canada (Attorney General)

Canada (Royal Canadian Mounted Police Public Complaints Commission) v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2004-06-09
Neutral citation
2004 FC 830
File numbers
T-25-03
Notes
Digest
Decision Content
Date: 20040609
Docket: T-25-03
Citation: 2004 FC 830
Ottawa, Ontario, this 9th day of June, 2004
Present: The Honourable Justice James Russell
BETWEEN:
ROYAL CANADIAN MOUNTED POLICE
PUBLIC COMPLAINTS COMMISSION
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an Application for judicial review of a decision of the Commissioner of the Royal Canadian Mounted Police ("RCMP Commissioner") refusing to comply with a request made pursuant to para. 45.41(2)(b) of the Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10 ("Act"), by the Chair ("Chair") of the Royal Canadian Mounted Police Public Complaints Commission ("Complaints Commission" or the "Applicant") for certain materials under the control of the RCMP that the Chair considered relevant to a complaint (Commission File No. 2000-0624), ("Complaint") made by a complainant ("Complainant").
BACKGROUND
The Search Warrant
[2] This Application has its origins in a Complaint filed with Complaints Commission as a result of a search conducted jointly by the RCMP and the Ontario Provincial Police ("OPP") of the Complainant's property. The search was conducted as part of an investigation by a Tri-Force Investigation Unit comprised of the RCMP, OPP and the Thunder Bay Police Service, and was authorized by a warrant issued by the Ontario Court of Justice pursuant to s. 487.3 of the Criminal Code. The RCMP and OPP sought, but were refused, further authorization to search the Complainant's home.
[3] Constable Delahey and Constable Kovacs of the RCMP have testified that they received information from an individual in the course of their duties which, in their opinion, indicated that there were reasonable and probable grounds to believe that an offence, pursuant to ss. 7(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, had been or was being committed on property owned by the Complainant.
[4] With respect to the person who provided the information, Constable Delahey stated that the individual had asked not to be identified and that he had undertaken to keep the individual's identity confidential.
[5] There is no indication in Constable Delahey's affidavit as to why he considered the individual to be a confidential human source.
[6] Based on the information provided by the confidential human source, Constable Delahey swore an Information to Obtain a Search Warrant ("Information") and was granted a General Warrant to Search ("Search Warrant") by Judge P. S. Glowacki of the Ontario Court, Provincial Division.
[7] At the request of Constable Delahey, the Information sworn in support of the Search Warrant was sealed pursuant to ss. 487.3(4) of the Criminal Code by order of Judge Glowacki.
[8] On December 21, 1999, Constable Delahey and Constable Holland, together with members of the OPP, executed the Search Warrant by searching a green barn owned by the Complainant.
[9] On December 21, 1999, after the execution of the Search Warrant, Constable Delahey sought, but was refused, an additional search warrant for the Complainant's residence.
Filing of Complaint
[10] The RCMP and OPP searched the Complainant's property but found no evidence of a criminal offence having been committed. On February 17, 2000, the Complainant, who was the owner of the green barn and the residence in question, filed a Complaint with the Ontario Provincial Police Public Complaints Bureau ("OPP Complaints Bureau") alleging, inter alia, that Constable Delahey improperly obtained the Search Warrant in respect of his green barn. The Complaint was dealt with separately by the RCMP and OPP under their respective public Complaints processes.
[11] The RCMP Complaint raised seven (7) questions, six (6) of which concerned the way in which the search was conducted and its aftermath. Only one (1) question inquired into the reasons for obtaining a search warrant:
6. WHY DID THE POLICE GET A SEARCH WARRANT FOR MY BARN IN THE FIRST PLACE. MY CONCERN IS THIS THE ONLY TIME OR ANY TIME.
Applicant's Record, Tab 24, Attachment to RCMP Public Complaint Receipt.
[12] On or about February 23, 2000, the OPP Complaints Bureau referred the Complaint to the RCMP Commissioner pursuant to ss. 45.35(3) of the Act.
[13] By letter dated June 19, 2000, the RCMP Non-Commissioned Officer in Charge, Complaints and Internal Investigations ("NCO in Charge") disposed of the Complaint pursuant to s. 45.4 of the Act. The letter of disposition found no improper conduct on the part of Constable Delahey. Instead of addressing the allegation that the Search Warrant was improperly obtained, the NCO in Charge stated that "the information used to obtain the search warrant for the [Complainant's green barn] and to formulate reasonable grounds came from confidential sources and as such, could not be made available to [the Complainant]."
[14] The RCMP letter of disposition does not specifically report on the results of the investigation into the allegation that Constable Delahey improperly obtained the Search Warrant, as required by s. 45.4 of the Act. In fact, the Applicant is concerned that there is no indication in the letter of disposition that the RCMP addressed this allegation.
[15] By letter dated June 26, 2000, the Complaints Commission received a letter from the Complainant requesting a review of his Complaint pursuant to s. 45.41(1) of the Act.
[16] By letter dated July 10, 2000, and pursuant to para. 45.41(2)(b) of the Act, the Complaints Commission requested the RCMP Commissioner's report under s. 45.4 and such other materials under the control of the RCMP as were relevant to the Complaint.
[17] On or about September 29, 2000, the Complaints Commission received from the RCMP what it describes as an incomplete package of materials relevant to the Complaint. Specifically, the package did not include the materials sworn in support of the Search Warrant for the green barn or the residence and included only vetted copies of the RCMP member's notes relating to the day of the incident. The letter enclosing the relevant materials package did not advise the Complaints Commission that relevant materials had not been forwarded and did not provide an explanation for having vetted the member's notes or indicate who undertook the vetting procedure. The Applicant is concerned that neither of the affidavits filed by the RCMP in this proceeding clearly explain the refusal to provide the Complaints Commission with these relevant materials.
[18] On or about October 30, 2000, the Complaints Commission determined that further enquiry into the Complaint was warranted and Complaints Commission personnel were directed to investigate further as provided by para. 45.42(3)(c) of the Act.
[19] That investigation was undertaken in respect of other allegations made in the same Complaint. The allegation that the Search Warrant had been improperly obtained could not be fully investigated or reviewed because of the RCMP's continuing refusal to provide all relevant materials including, but not limited to, the sworn information and the unvetted notes of the RCMP members involved.
[20] In the course of that further investigation, Complaint's Commission personnel collected evidence assembled by the OPP Complaints Bureau. The Applicant submits that this evidence makes it clear that the OPP investigator, Sergeant Major Sandra McNamara, who reviewed the Complaint as against the OPP officers, was given access to the information the Chair seeks, including the name of the confidential source. The Applicant further submits that it is also clear that Sergeant Major McNamara was given the opportunity to interview the confidential source in order to discharge her role in the OPP complaints process.
[21] As the Sworn Information contained information that might indirectly reveal the identity of the confidential human source, the Ontario Court of Justice issued an order pursuant to ss. 487.3(4) of the Criminal Code sealing the Sworn Information ("Sealing Order").
[22] Because she considered it likely that the RCMP might be reluctant to provide the Complaints Commission with the relevant materials, because they were subject to the Sealing Order, the Chair instructed counsel to make an application to modify the Sealing Order in the Ontario Court of Justice to grant the Chair full access to the sealed materials. However, when the Chair met with the RCMP Commissioner on December 4, 2002, to discuss the issues raised by that application, the RCMP Commissioner made it clear to the Chair that, in his view, the Chair was not entitled to the materials. His position in this respect was confirmed in a letter dated December 18, 2002. In the circumstances, the Chair decided to withdraw the Ontario application and to deal with the broader issues raised by the RCMP Commissioner in this Court.
[23] On or about May 2, 2003, the RCMP provided the Complaints Commission with a vetted copy of a draft Appendix A to an unsworn information ("Unsworn Information") in respect of an authorization for a warrant to search the Complainant's residence. Prior to delivery of the Unsworn Information to the Complaints Commission, the RCMP vetted it to delete any information that the RCMP believed might lead to the identification of the confidential human source. In order to include the Unsworn Information in this Application Record, the RCMP felt it necessary to further vet the Unsworn Information to ensure that any references that might directly or indirectly identify a confidential human source were deleted.
[24] On or about May 15, 2003, the RCMP provided the Complaints Commission with a vetted copy of Appendix A to the Sworn Information in respect of an authorization for a warrant to search the Complainant's green barn.
[25] The Sworn Information was provided to the Complaints Commission in accordance with the order of Justice R. J. Walneck of the Ontario Court of Justice dated May 14, 2003, and was vetted by the RCMP and a federal prosecutor so as to delete any references that might directly or indirectly identify the confidential human source.
PERTINENT LEGISLATION
[26] The Applicant is authorized by the Act to operate as an impartial and independent body in investigating complaints by the public concerning the performance of duties by members and officers of the RCMP (s. 45.35(1)). Based on its findings, the Applicant makes recommendations to the RCMP Commissioner and the Solicitor General. To enable the Applicant to carry out its mandate, Part VII of the Act gives it certain powers.
[27] The Applicant is empowered to receive and investigate (ss. 45.35(1) and 45.41(1)) complaints from any member of the public regarding the conduct of the RCMP. The Complaints Commission can also initiate its own complaint if it is satisfied that there are reasonable grounds to investigate the conduct of the RCMP (s. 45.37(1)).
[28] Complaints are first investigated by the RCMP (ss. 45.37(4) and 45.36). The RCMP Commissioner then reports the results of the investigation to the Complainant (s. 45.36(6)). If the complainant is not satisfied with the RCMP Commissioner's report, he or she can then submit the matter to the Complaints Commission for further review (s. 45.41(1)). The Complaints Commission may:
a. ask the RCMP to investigate the matter further if the investigation seems inadequate (s. 45.42(3)),
b. initiate its own investigation (s. 45.43(3)(c)), or
c. hold a public hearing (s. 45.43(3)(c)).
[29] Subsection 45.41(2) of the Act reads as follows:
(2) Where a complainant refers a complaint to the Commission pursuant to subsection (1),
(a) the Commission Chairman shall furnish the Commissioner with a copy of the complaint; and
(b) the Commissioner shall furnish the Commission Chairman with the notice under subsection 45.36(6) or the report under section 45.4 in respect of the complaint, as the case may be, and such other materials under the control of the Force as are relevant to the complaint.
(2) En cas de renvoi devant la Commission conformément au paragraphe (1)_:
a) le président de la Commission transmet au commissaire une copie de la plainte;
b) le commissaire transmet au président de la Commission l'avis visé au paragraphe 45.36(6) ou le rapport visé à l'article 45.4 relativement à la plainte, ainsi que tout autre document pertinent placé sous la responsabilité de la Gendarmerie.
[30] Subsection 45.42(1) of the Act reads as follows:
(1) The Commission Chairman shall review every complaint referred to the Commission pursuant to subsection 45.41(1) or initiated under subsection 45.37(1) unless the Commission Chairman has previously investigated, or instituted a hearing to inquire into, the complaint under section 45.43.
(1) Le président de la Commission examine chacune des plaintes qui sont renvoyées devant la Commission conformément au paragraphe 45.41(1) ou qui sont portées en application du paragraphe 45.37(1), à moins qu'il n'ait déjà fait enquête ou convoqué une audience pour faire enquête en vertu de l'article 45.43.
[31] The Complaints Commission can also institute a public hearing into a complaint at any time (s. 45.43), even prior to an investigation by the RCMP, and has the powers conferred on a board of inquiry pursuant to paras. 24.1(3)(a), (b) and (c) of the Act, which include the power (s. 45.45(4)):
(a) to summon any person before the board and to require that person to give oral or written evidence on oath and to produce such documents and things under that person's control as the board deems requisite to the full investigation and consideration of that matter;
(b) to administer oaths;
(c) to receive and accept on oath or by affidavit such evidence and other information as the board sees fit, whether or not such evidence or information is or would be admissible in a court of law; and
(d) to make such examination of records and such inquiries as the board deems necessary.
a) assigner des témoins, les enjoindre à témoigner sous serment, oralement ou par écrit, et à produire les documents et pièces don't ils ont la responsabilité et que la commission estime nécessaires à une enquête et étude complètes;
b) recevoir des serments;
c) recevoir et accepter les éléments de preuve et renseignements, fournis sous serment ou sous forme d'affidavit, qu'elle estime indiqués, qu'ils soient ou non recevables devant un tribunal;
d) procéder à l'examen des dossiers ou registres et aux enquêtes qu'elle juge nécessaires.
[32] Following a hearing, the Complaints Commission sets out its findings and recommendations in a report to the RCMP Commissioner, the Solicitor General, the complainant and the RCMP member(s) who are the subject of the complaint (s. 45.45(14)). The RCMP Commissioner is required to respond to the report indicating whether the RCMP will act on the Complaints Commission findings and recommendations (s. 45.46(2)). If the RCMP Commissioner declines to so act, he or she must indicate reasons. After considering the RCMP Commissioner's response, the Complaints Commission issues a final report (s. 45.46(3)).
ISSUES
[33] The Applicant submits that the RCMP Commissioner has failed to fulfill his statutory obligation under para. 45.41(2)(b) of the Act that requires him to furnish the Chair with all materials under the control of the RCMP that are relevant to the Complaint.
[34] The Applicant further submits that para. 45.41(2)(b) of the Act is unconditional and does not authorize the RCMP Commissioner to withhold any materials relevant to the Complaint.
[35] Finally, the Applicant submits that delivery of all relevant materials to the Chair does not infringe the police informer privilege or the public policy upon which it is founded. The Chair undertakes that the information sought will be held in the strictest confidence in order to ensure that the identity of the informant remains confidential.
[36] The Applicant seeks, inter alia, an Order:
1. in the nature of Mandamus requiring the Commissioner to comply with his statutory obligation under s. 45.41(2)(b) of the RCMP Act to furnish the Chair of the Complaints Commission with all materials under the control of the RCMP as are relevant to a complaint referred to the Applicant on July 6, 2000 pursuant to s. 45.41(1) of the RCMP Act;
2. a declaration that the Commissioner may not refuse to furnish to the Chair any materials that are relevant to a complaint and which are required to be furnished by s. 45.41(1) of the RCMP Act.
ARGUMENTS
Applicant
[1] The Applicant advances strong and compelling arguments as to why the Chair should have access to the information sought.
Individuals Who Have Had Access to the Information at Issue
[2] The Applicant notes that a fair number of individuals have already had access to the information that the Applicant seeks.
[3] Constable Kovacs originally received the information from the informer either alone or in company with Constable Delahey. In this respect, there is an inconsistency between the affidavit of Constable Delahey and the Sworn Information but, in any event, it is clear that Constable Kovacs and Constable Delahey shared the information.
[4] Subsequently, Constable Delahey shared the information with Constable Holland. Constable Holland was given the information because he was a more accomplished typist than Constable Delahey. Constable Holland only acknowledged this in response to written interrogatories.
[5] Judge Glowacki of the Ontario Provincial Court was given access to the information when Constable Delahey requested the Search Warrant.
[6] Following the complaint to the OPP Complaints Bureau, OPP Sergeant Major Sandra McNamara was given access to the information. In fact, she interviewed the informer in the course of investigating the Complaint in the manner required by Ontario law.
[7] Mr. Ronald J. Poirier was retained by the RCMP to obtain an Order in respect of the Sealed Information. This application was made, ex- parte, by the RCMP and was heard by Judge Walneck of the Ontario Provincial Court who viewed the Sealed Information in its entirety and then varied the Sealing Order.
[8] The registrar of the Provincial Court was directed to open the sealed package containing the Sealed Information.
[9] A duplicate copy of the Sealed Information, or a true copy prepared by the registrar, was provided to Mr. Poirier.
[10] In accordance with the Order of Judge Walneck, federal prosecutor Roderick Sonley had access to the Sealed Information for purposes of vetting.
[11] The Applicant submits that the record demonstrates that the information the Chair requires in order to do her job has been viewed by three members of the RCMP, one member of the OPP, two judges, a court registrar, a lawyer in private practice serving as agent for the Attorney General and a federal prosecutor in the employ of the Department of Justice, Canada. There is no reason why it should not also be made available to the Chair who is a trusted law officer and who will ensure that the information remains confidential.
The Chair's Ability and Willingness to Safeguard Sensitive Information
[12] The individuals previously mentioned are assumed to be willing and able to safeguard sensitive information. In fairness, such an assumption should also apply to the Chair. In any event, the Chair, Vice-Chair and Complaints Commission staff have security clearances appropriate to their levels and responsibilities. The Chair has a top secret security clearance, as do necessary investigators and staff. The Complaints Commission offices have been designed to take into account the sensitive nature of such information that may be received and a high level of physical security both for the premises and for file storage is maintained.
[13] In the past, during reviews, the Complaints Commission has received very sensitive information with respect to RCMP investigative techniques and national security matters. In such circumstances, the Complaints Commission has taken such precautions as were necessary to ensure that sensitive information did not find its way into a Complaints Commission report and, therefore, into the public domain.
[14] The Applicant submits that if this Court sees fit to grant this Application, the Chair will continue to ensure the integrity of all materials turned over to the Complaints Commission in accordance with the Act.
Position of the Parties
[15] The Applicant submits that, when conducting a review, the Chair is entitled to receive from the RCMP Commissioner all information relevant to the complaint, without exception and without deletion. It is acknowledged by the Chair that she is subject to the same constraints that are imposed on any public official who comes into possession of information that is subject to police informer privilege.
[16] The RCMP, however, takes the position that, notwithstanding the unqualified language of para. 45.41(2)(b), the constraints imposed by the police informer privilege prevent the RCMP from providing all relevant materials to the Chair for the purposes of a review into the complaint made in this case.
[17] The Applicant submits that the real issue to be addressed in this case is the fundamental one of whether the Chair of the Complaints Commission should also be entitled to share in the information in order to do the job entrusted to her by Parliament without any breach of the guarantee of confidentiality owed to the informer and without the consent of the informer. The informer privilege did not prevent the RCMP from sharing the information with all the people previously mentioned. Therefore, argues the Applicant, it should not prevent the RCMP from sharing it with the Chair.
Police Informer Privilege
[18] The essential characteristic of the police informer privilege is the guarantee of confidentiality owed to the informer. The police informer privilege is a rule of law that cannot be abrogated by a judge and cannot be waived by the Crown without the consent of the informer. The public policy on which the privilege is founded is (a) the protection of the informer and (b) the promotion of delivery of information to police to assist them in detecting and preventing crime ®. v. Leipert, [1997] 1 S.C.R. 281).
[19] For purposes of this case, the Applicant is willing to accept that there is an informer who has provided information to the police that is subject to the privilege, and that the informer is entitled to a guarantee of confidentiality which the Crown cannot waive without his or her consent.
[20] Since police officers, judges and Crown attorneys routinely share information subject to the privilege, it is clear that such information can be shared in a limited way without breach of the guarantee and without the consent of the informer. In fact, the circle of people entitled to share the information expands over time, and is dependant on the facts. The expansion of this circle occurs
without breach of the guarantee, without the consent of the informer and, most importantly, without violating the policy upon which the privilege is founded. The Crown attorney in this application, for example, may have to modify the presentation of his case in order to respect the privilege ®. v. Hunter (1987), 59 O.R. (2d) 364 at 376 (C.A.))
[21] In the case at bar, the RCMP must take the position that the privilege came into existence the moment the informer provided information to the first police officer. At that point, the informer was entitled to a guarantee of confidentiality that the Crown could not waive without his or her consent. Eventually, at least two more members of the RCMP shared in the information, as did two judges, a court registrar, a member of the OPP Complaints Bureau, an agent of the Attorney General and a lawyer in the employ of the Department of Justice. Notwithstanding this extensive sharing of the information, the guarantee was not breached and the consent of the informer was not required.
[22] Since police officers, judges and Crown attorneys routinely share the information, the Applicant argues that we must conclude that the courts are content with this sharing because it does not undermine the public policy upon which the privilege is founded. When these people share the information, the informer is not placed at risk and there is no inhibition to the delivery of information to the police by the public.
[23] Constable Delahey gave the information to Constable Holland who typed it. It is unclear what standards Constable Delahey applied in determining if it was appropriate to share the information with Constable Holland or, for that matter, the OPP Sergeant Major. In fact, the courts have given no express guidance on this exercise of discretion but some guidance can be deduced from what the cases have permitted and expected.
[24] The Applicant proposes standards that can be applied in this and other cases to insure that the policy behind the privilege remains sacrosanct. The Chair, like the RCMP Commissioner, is determined that the name of the informer and any information that could identify the informer will never be disclosed to the public at large or to the Complainant in particular.
[25] The first standard that can be deduced from the cases relates to the character of the intended recipient. Is the intended recipient trustworthy? In the case of police officers, judges and Crown attorneys, the recipient is a trusted representative of the state and is assumed to be trustworthy.
[26] The second standard involves an examination of the reason the intended recipient is being entrusted with the information. The intended recipient must have a legitimate public interest purpose in sharing the information. In determining the legitimacy of the public interest purpose, the Applicant submits that an appropriate exercise of discretion would involve the weighing and balancing of various public interests, including the public policy upon which the privilege is founded. Accordingly, notwithstanding the privilege, police officers routinely share the information in order to prevent and detect crime. Sometimes, as in this case, and again notwithstanding the privilege, police officers share the information in order to perform their duties in relation to public complaints of police misconduct. Similarly, judges share the information in order to ensure that the law is enforced with due regard for the constitutional rights of targeted individuals, and Crown attorneys share the information in order to conduct a fair prosecution of the accused. In each situation, the intended recipient has a legitimate "need to know" the information in order to perform their public duties.
[27] The third standard proposed by the Applicant would impose constraints on the intended recipient to ensure that they must be prepared to conduct themselves in their professional life, as well as in their private life, in such a way that does not betray the identity of the informer and does not betray the public policy upon which the privilege is founded. For example, a police officer may not be able to immediately arrest an alleged criminal if the immediate arrest would betray the identity of the informer. A judge may have to seal the information in support of a search warrant to ensure the name of the informer does not become the subject of a news story. A Crown attorney may have to modify the way he or she conducts a case so as not to inadvertently disclose the identity of the informer while examining witnesses, introducing exhibits and making arguments.
These Standards Applied to the Chair of the Complaints Commission
[28] The Applicant submits that sharing all relevant information with the Chair of the Complaints Commission, including information that would identify the informer, would not undermine the policy upon which the informer privilege is founded.
[29] First, as a Barrister & Solicitor and Governor-in-Council appointee with top secret status, the Chair is a trusted representative of the state.
[30] Second, the Chair has a legitimate public interest purpose in acquiring the information. In fact, in a general sense, it is the same public interest purpose that the OPP Sergeant Major had in acquiring the information, namely, performance of the public complaint function given by Parliament/the Legislature. In light of the RCMP decision to share the information with the OPP Complaints Bureau Sergeant Major, it would appear, argues the Applicant, that the legitimacy of the Chair's public interest purpose in acquiring the information is beyond challenge.
[31] Finally, the Chair is prepared to conduct herself in a manner that will ensure the identity of the informer is not betrayed and the police informer privilege is respected. Like all trusted representatives of the state, it can be assumed that she will so conduct herself but, in any event, she has made it clear to the Court in these proceedings through a specific undertaking that she will take all steps necessary to prevent disclosure of the information.
A Review Is Not a Public Proceeding
[32] A review by the Chair pursuant to ss. 45.42(1) of the Act is not a public proceeding. If it was a public proceeding, the information could not form part of the public record.
[33] The Chair has unfettered discretion to determine the form and substance of the review and unfettered discretion to determine the form and substance of the report that follows the review. Accordingly, she can conduct the review as she sees fit and is free to report, or not report, facts as she sees fit. In protecting the police informer privilege, the Chair is free to state her conclusions without referring to the evidence or otherwise providing her reasons.
No Precedent Governs This Application
[34] In Leipert, supra, the Supreme Court of Canada reaffirmed the importance of the police informer privilege. The Applicant unequivocally accepts the result and the reasoning in Leipert. However, Leipert involved an application by the accused to access information that included the identity of an informer. The Applicant submits that had the accused in that case been granted such access it would have constituted a violation of the policy upon which the privilege is founded. Shortly stated, the accused was not trustworthy, did not have a legitimate public interest purpose in acquiring the information and could not be trusted to safeguard the identity of the informer. Hence, the Applicant asserts, Leipert has no application to the case at bar.
[35] The Applicant advances similar arguments concerning the decisions of the Supreme Court of Canada in the Health Records case and the line of cases that followed it. In each of those cases, the intended recipient of the information felt duty bound to publicly disseminate the confidential information. Clearly, sharing the information with those individuals would have violated the public policy behind the privilege. (See Canada (Solicitor General) v. Ontario (Royal Commission of Inquiry into the Confidentiality of Health Records in Ontario), [1981] 2 S.C.R. 494, Bisaillon v. Keable, [1983] 2 S.C.R. 60, Canada (Royal Canadian Mounted Police) v. Saskatchewan (Commission of Inquiry into the death of Leo La Chance), [1992] 6 W.W.R. 62 (Sask. C.A.)).
[36] The Applicant argues that, since Leipert, supra, and Health Records, supra, do not govern this Court on the facts of this case, and no other case is on point, the Court ought to adopt the reasoned approach set out above in determining whether the Chair of the Complaints Commission is entitled to receive all relevant information requested from the RCMP Commissioner, without exception and without deletion.
The Critical and Expanding Role of the Chair in Reviewing Police Conduct
[37] When the Solicitor General first introduced the legislation creating the Complaints Commission, he acknowledged the importance of independent civilian oversight of police activity. More recently, with the introduction of broad powers of detention and the power to arrest persons who are thought to be likely to facilitate or engage in terrorist activity in the new anti-terrorism legislation and amendments to the Criminal Code, the Minister of Justice had the following to say when she testified before the Senate Committee examining Bill C-36:
Honourable senators, proper review and oversight of the powers provided under Bill C-36 will also help to ensure that the powers are applied appropriately. In this respect, I would emphasize that various accountability mechanisms already established under Canadian law will apply to the exercise of powers under the bill. This would include, for example, such mechanisms as the Commission for Public Complaints against the RCMP and the various Complaint and review mechanisms that apply in respect of police forces under provincial jurisdiction.
[38] The Solicitor General also emphasized to the Senate Committee the importance of
the Complaints Commission's role in oversight of the activities of the RCMP:
The courts and civilian oversight bodies provide essential checks and balances to ensure the integrity of the police in all that they do. The freedom to question any perceived wrongdoing is central to a law enforcement system that reflects and protects our core values of freedom, democracy and equality.
Police efforts to deal with terrorists and their acts will be subject to the same checks and balances. Independent review bodies, such as the Commission for Public Complaints Against the RCMP will continue to perform an extremely important role in holding police services accountable to the public they are sworn to serve
Anti-Terrorism Act, S.C. 2001, c. 41, amending the Criminal Code, R.S. 1985, c. C-46.
[39] As the Minister of Justice and the Solicitor General have acknowledged, effective independent oversight of the police is an important matter. It is important in curbing potential police excesses, but it is equally important as a tool for enhancing police effectiveness and public confidence in the activities of the police. In a speech to the Eighth Annual Conference of the National Association of Civilian Oversight of Law Enforcement in Cambridge, Massachusetts, USA on November 1, 2002, the Police Ombudsman for Northern Ireland had the following to say:
It is important to say to you that there is no inherent contradiction between effective policing, even in the context of ongoing terrorism, and effective independent investigation of Complaints against the police. The outcome of rigorous independent professional investigation can only contribute to an enhanced policing service and to enhanced confidence in the police. The independent scrutiny in Northern Ireland has not caused any difficulty to those responsible for investigating terrorist acts. It has concentrated minds and led to better investigative procedures. The fight against terrorism should never be used as a reason to deny independent investigation of police Complaints.
[40] The Applicant points out that the effectiveness of the civilian oversight scheme that Parliament has set out in Parts VI and VII of the Act is dependent upon complete access to all materials in the possession of the RCMP that are relevant to a complaint. Without access to all materials relevant to the complaint in question, the Chair of the Complaints Commission cannot conduct a review of the complaint that is independent of the RCMP. This effectively frustrates Parliament's intent as embodied in the Act.
[41] The Applicant says that, by taking the position that the Complaints Commission cannot have access to information that may identify a confidential source, the RCMP is effectively prohibiting the Complaints Commission from reviewing complaints against members of the RCMP who claim to be acting on information supplied by such sources. Such a complaint could be valid if, for example, the source was unreliable or was motivated by malice or an attempt to gain revenge and the RCMP member failed to fully disclose that fact to the court when obtaining a search warrant.
[42] The Applicant urges the Court to note that, at present, there is no mechanism whatsoever for evaluating an RCMP claim that confidential material is involved. In this case, the RCMP claims that the vetted portions of the Unsworn Information and the Sworn Information could identify the informer. But the Chair cannot evaluate whether this is so.
[43] When an individual is accused of a crime, he or she has the protection of the court and a forum within which to argue that his or her Charter rights have been violated, and the court can exercise supervisory powers in relation to a police officer's conduct. This includes the power to grant the accused access to all or part of a sealed search warrant packet and the power under s. 24 of the Charter to exclude evidence which has been illegally obtained, or to stay proceedings if the administration of justice could be brought into disrepute. A recent example of the exercise of the Court's supervisory powers over a member of the RCMP is found in R. v. Duncan, [2002], M.J. No. 425.
[44] The Applicant makes the point that an individual who is subjected to a search or other intrusive police activity, including arrest, but who is never charged must rely, as the Minister of Justice and Solicitor General have pointed out, on the right to effectively complain in accordance with Part VII of the Act.
[45] Finally, the Applicant points out that the new Anti-Terrorism Act highlights the importance of effective civilian oversight of police conduct because, as senior members of the Department of Justice have repeatedly said, the aim of the Anti-Terrorism Act is prevention, not prosecution. That means that RCMP efforts to prevent terrorism should not entail regular resort to the courts by way of charges. As with this case, where no charges were laid, the courts will not have an opportunity to exercise their normal supervisory powers in relation to police conduct. The significance of the present Application is magnified by the fact that this new legislation contemplates the possibility of many cases involving intrusive police conduct where no charges are laid.
Respondent
General
[46] The Applicant's arguments are reasonable and highly persuasive, but the Respondent says there are various reasons why they cannot carry the day.
[47] The RCMP met with the Complainant to discuss his concerns and explain the circumstances surrounding the search of his property, including the fact that some of the information used to obtain the search warrant could not be disclosed to him because it was provided by a confidential human source. The RCMP concluded that its members were authorized to search the Complainant's property and found no misconduct in the way the search was conducted.
[48] The Complainant made a request to the Complaints Commission to review his Complaint because he felt the RCMP had not addressed his concerns. In summarizing his grounds of review the Complainant stated that he was "unhappy with the way the warrant was executed" and alleged that the RCMP had conducted an unauthorized search of his house.
[49] Upon being advised of the Complainant's request for a review, the RCMP furnished the Complaints Commission with a copy of documents pertinent to the Complaint. A copy of the Sworn Information and an unvetted copy of the Officers' Notes were not among these documents. The copy of the Officers' Notes provided to the Applicant was vetted to delete any references that might reveal the identity of the confidential source.
[50] The Applicant claimed that the RCMP was obligated under para. 45.41(2)(b) of the Act to furnish it with a copy of the Sworn Information and an unvetted copy of the Officers' Notes. In reply, the RCMP Commissioner took the position that