Vol. 132, No. 44 — October 31, 1998

Regulations Amending the Royal Canadian Mounted Police Regulations, 1988

Statutory Authority

Royal Canadian Mounted Police Act

Sponsoring Department

Department of the Solicitor General

REGULATORY IMPACT
ANALYSIS STATEMENT

Description

Sections 56 and 57 of the Royal Canadian Mounted Police Regulations, 1998 (RCMP Regulations) prohibit members of the Force from engaging in political activities. The Standing Joint Committee on the Scrutiny of Regulations examined these sections and expressed the concern that they violate the Charter of Rights and Freedoms (the Charter). On May 14, 1998, the Solicitor General appeared before the Committee and assured its members that his Department was and would remain actively involved in the development of amendments that would address the Committee's concern. On September 2, 1998, the Quebec Superior Court rendered a decision which recognized the validity of the Royal Canadian Mounted Police's (the Force) objective in establishing some restrictions to political activities; however, the Court found the existing Regulations too restrictive and therefore declared section 57 to be in violation of the Charter. Also, the Court specified that the judgement would only be effective on January 1, 1999, in order to allow the Government the opportunity to make appropriate amendments to the Regulations.

The present draft amendments will satisfy these Charter concerns by introducing provisions that are less restrictive. While the Force's operational mandate continues to require restrictions to the carrying out of political activities by members of the Force, the amendments will achieve a better balance between the exercise of Charter rights and the maintenance of the Force's integrity. While the present Regulations simply prohibit all members alike from engaging in any political activity, the proposed amendments will treat separate categories of members differently, according to whether they are part of senior management, are peace officers or are not peace officers.

Moreover, the proposed amendments contemplate restrictions that are tailored to the particular circumstances of each case. In appropriate circumstances, some members will be allowed to engage in political activities provided that they do so while on leave of absence without pay. In certain circumstances, some members may be allowed to carry on political activities without having to take a leave of absence from the Force. In exceptional circumstances, some members may face an absolute prohibition from engaging in a political activity.

The proposed amendments contemplate that a member who is elected to office must resign or retire from the Force before assuming the duties of the office. An exception to this requirement is made in the case of members who are not peace officers and qualify to campaign for office without having to take a leave without pay.

Furthermore, additional protection is given to members' Charter rights in the form of an expedited appeal process.

Alternatives

Four possible methods to achieve restrictions on members' political activities were identified:

1. By policy

2. By Commissioner's Standing Order

3. By amendment to the RCMP Regulations

4. By amendment to the RCMP Act

The first method is not advisable because in order to establish a defence under section 1 of the Charter, it is necessary that the limits on Charter-protected activities be prescribed by law.

The second method had been considered but it was decided that these restrictions should remain part of the code of conduct provisions found in the RCMP Regulations; amendments to the Regulations is the third method.

The fourth method had been advocated by the Standing Joint Committee but was not adopted because regulatory amendments were deemed sufficient to address the concerns raised by the Committee and it would have taken too long to achieve legislative amendments. The timing problem was compounded by the court decision which requires that amendments be in place by January 1, 1999.

Benefits and Costs

There is no expected financial impact.

Consultation

Consultation with the Commanding Officers, Directors, administration and personnel Officers and Division Staff Relations Representatives (DSRR) was done from the early stages of drafting these proposed amendments. Consultation was done by providing them draft outlines of proposed amendments and seeking their comments. Senior management also held discussions with DSRRs in a national forum and received unanimous support on the general concept that members involved in political activities should be restricted in some fashion.

A working group was struck in fall of 1997, comprising representatives from the RCMP, RCMP Legal Services, Solicitor General and Human Rights section of the Department of Justice. The working group's mandate was to produce proposed amendments which would satisfy management concerns and, at the same time, minimally impair members' rights to engage in political activity.

During this process, the RCMP policy centre kept the Internal Affairs Committee (which represents the Commanding Officers and the Force membership) regularly informed of the working group's progress, through various forms of communications and internal meetings. The attached draft is the result of detailed discussions over a period of several months and feedback received from the consultation process.

Compliance and Enforcement

Unchanged enforcement policy: the amendments to the Regulations are part of the code of conduct governing members.

Contact

Supt. James Newman, Officer in charge, Internal Affairs Branch, 250 Tremblay Road, Ottawa, Ontario K1A 0R2, (613) 993-2728 (Telephone), (613) 952-0618 (Facsimile).

PROPOSED REGULATORY TEXT

Notice is hereby given that the Governor in Council, pursuant to subsection 21(1) (see footnote a) and section 38 (see footnote b) of the Royal Canadian Mounted Police Act, proposes to make the annexed Regulations Amending the Royal Canadian Mounted Police Regulations, 1988.

Any interested person may make representations concerning the proposed Regulations within 30 days after the date of publication of this notice. All such representations must be addressed to Supt. James Newman, Officer in charge, Internal Affairs Branch, 250 Tremblay Road, Ottawa, Ontario K1A 0R2, (613) 993-2728 (Telephone), (613) 952-0618 (Facsimile).

October 29, 1998

MICHÈLE CURRIE
Acting Assistant Clerk of the Privy Council

REGULATIONS AMENDING THE ROYAL CANADIAN MOUNTED POLICE REGULATIONS, 1988

AMENDMENT

1. Sections 55 to 58 (see footnote 1) of the Royal Canadian Mounted Police Regulations, 1988 (see footnote 2) are replaced by the following:

55. A member shall not, unless authorized by the Commissioner, accept any remuneration from any federal, provincial, municipal or regional government, department or agency or any Crown corporation.

56. Members shall conduct themselves in public in relation to any political issue, party, candidate or election so that their impartiality in the performance of their duties is not affected and does not appear to be affected.

57. (1) A member shall not represent the member's opinions or comments on political matters as being opinions or comments of the Government of Canada, of the Force or a member of the Force, or of a province, region or municipality to which the Force provides policing services.

(2) A member shall take reasonable steps to prevent the member's opinions or comments on political matters from being represented as opinions or comments of the Government of Canada, of the Force or a member of the Force, or of a province, region or municipality to which the Force provides policing services.

(3) Unless performing a specific duty on behalf of the Force, a member in uniform or on duty shall not attend a political meeting or take part in any social activity in relation to a political issue, party or candidate.

58. The Commissioner, a member at the deputy commissioner or assistant commissioner rank, or a commanding officer or director, shall not

(a) run for nomination or be a candidate in a federal, provincial or territorial election or in an election for the council of a region or municipality or the council or other governing body of a band or first nation;

(b) be a candidate for the leadership of a political party;

(c) campaign for or against an issue that may be submitted to a political voting process, including a referendum; or

(d) engage in the raising of funds for a political party or a candidate in an election referred to in paragraph (a), for a candidate for the leadership of a political party or for a person or association taking or proposing to take a position publicly for or against any question that may be submitted to a political voting process, including a referendum.

58.1 (1) In sections 58.2 to 58.8, "appropriate officer" means

(a) for a member in a region, other than an officer, the officer in charge of the administration function for the region;

(b) for a member of the headquarters of the Force, other than an officer, the officer in charge of the administration function for the Central Region; and

(c) for an officer, the Director, Human Resources.

(2) Sections 58.2 to 58.4 do not apply to the Commissioner, a member at the deputy commissioner or assistant commissioner rank, or a commanding officer or director.

58.2 (1) Any member who is a peace officer shall not, except while on leave of absence without pay granted for that purpose,

(a) run for nomination or be a candidate in a federal, provincial or territorial election or in an election for the council of a region or municipality or the council or other governing body of a band or first nation;

(b) be a candidate for the leadership of a political party; or

(c) campaign for or against an issue that may be submitted to a political voting process, including a referendum.

(2) The appropriate officer shall, on application by the member, grant the member leave of absence without pay for that purpose unless the absence of the member, or the political activity that the member proposes to carry on during the period of leave of absence, would risk compromising a criminal investigation or prosecution or would risk causing a serious operational problem for the Force.

(3) The period of the leave of absence without pay shall be continuous and shall include all periods during which the member proposes to carry on an activity referred to in subsection (1). The period shall not be less than the total of all of the following periods that are applicable:

(a) in the case of a nomination process, the duration of the nomination process, beginning on the day on which the member enters the process;

(b) in a case where the member becomes a candidate, the period beginning on the day on which the member becomes a candidate and ending on the day on which the results of the election are officially declared;

(c) in a case where the member is elected, the period beginning on the day after the day on which the results of the election are officially declared and ending on the day before the day on which the member assumes the duties of the office to which the member is elected;

(d) in the case of a member who is campaigning for the leadership of a political party, the duration of the member's campaign; and

(e) in the case of a campaign for or against an issue that may be submitted to a political voting process, the period beginning on the day on which the member starts campaigning and ending on the day of the vote.

58.3 (1) Any member who is a peace officer, other than a member on leave of absence under section 58.2, shall not, except while on leave of absence without pay granted for that purpose, engage in raising funds for

(a) a political party;

(b) a candidate in an election referred to in subsection 58.2(1);

(c) a candidate for the leadership of a political party; or

(d) a person or association taking or proposing to take a position publicly for or against any question that may be submitted to a political voting process, including a referendum.

(2) The appropriate officer shall, on application by the member, grant the leave of absence without pay unless

(a) the absence of the member would risk compromising a criminal investigation or prosecution or would risk causing a serious operational problem for the member's unit; or

(b) the fund-raising by the member, even while on leave of absence without pay, would risk impairing the integrity or the appearance of impartiality of the Force or would risk causing a serious operational problem for the Force.

(3) A period of leave of absence granted under subsection (2) shall be a continuous period starting on the day on which the member begins the fund-raising and ending on the day on which the member ends the fund-raising.

58.4 (1) Any member who is not a peace officer shall not, except with permission granted for that purpose,

(a) run for nomination or be a candidate in a federal, provincial or territorial election or in an election for the council of a region or municipality or the council or other governing body of a band or first nation;

(b) be a candidate for the leadership of a political party;

(c) campaign for or against an issue that may be submitted to a political voting process, including a referendum; or

(d) engage in the raising of funds for a political party, for a candidate in an election referred to in paragraph (a), for a candidate for the leadership of a political party or for a person or association taking or proposing to take a position publicly for or against any question that may be submitted to a political voting process, including a referendum.

(2) Subject to subsections (3) and (4), the appropriate officer shall, on application by the member, grant permission to carry on an activity referred to in subsection (1).

(3) The appropriate officer shall grant the permission on condition that the member takes a period of leave of absence without pay while carrying on the activity, if carrying on the activity while not on leave of absence without pay would risk

(a) impairing the integrity or the appearance of impartiality of the Force or causing a serious operational problem for the Force; or

(b) compromising the usefulness of the member to the Force, having regard to such factors as the role, level and visibility of the member's position and whether the political activity would interfere with the member's duties or place the member in a situation of conflict of interest.

(4) The permission requested under subsection (2) shall not be granted if

(a) in a case where permission would be granted only on condition that the member take leave of absence without pay, the absence of the member would risk compromising a criminal investigation or prosecution or would risk causing a serious operational problem for the member's unit; or

(b) the participation of the member in the activity, even while on leave of absence without pay, would risk impairing the integrity or the appearance of impartiality of the Force or would risk causing a serious operational problem for

(5) The period of the leave of absence without pay granted under subsection (3) shall be continuous and shall include all periods during which the member proposes to carry on an activity referred to in subsection (1). The period shall not be less than the total of all of the following periods that are applicable:

(a) in the case of a nomination process, the duration of the nomination process, starting on the day on which the member enters the process;

(b) in a case where the member becomes a candidate, the period beginning on the day on which the member becomes a candidate and ending on the day on which the results of the election are officially declared;

(c) in a case where the member is elected, the period beginning on the day after the day on which the results of the election are officially declared and ending on the day before the day on which the member assumes the duties of the office to which the member is elected;

(d) in the case of a member who is campaigning for the leadership of a political party, the duration of the member's campaign;

(e) in the case of a campaign for or against an issue that may be submitted to a political voting process, the period starting on the day on which the member starts campaigning and ending on the day of the vote; and

(f) in the case of fund-raising, the continuous period starting on the day on which the member begins the fund-raising and ending on the day on which the member ends the fund-raising.

58.5 A member carrying on an activity referred to in any of paragraphs 58.2(1)(a) to (c) and 58.4(1)(a) to (c) may, for campaign purposes, identify the member's rank or level, position and work experience in the Force, but when providing any of that information for those purposes, the member shall state that the member is on leave of absence from the Force without pay.

58.6 (1) A member who is elected in an election referred to in section 58.2 or 58.4 or who becomes the leader of a political party shall resign or retire from the Force, and obtain a discharge from the Force, before assuming the duties of office.

(2) Subsection (1) does not apply to a member who is not a peace officer, who was granted permission without taking leave of absence without pay to run in an election for the council of a region or municipality or the council or other governing body of a band or first nation, and who is elected in that election.

58.7 An appropriate officer to whom an application is made by a member under any of sections 58.2 to 58.4 shall as soon as possible make a decision on the application and without delay provide the member with the decision and the reasons for the decision. The decision and the reasons shall be in writing.

58.8 (1) If a member is aggrieved by a decision, act or omission of the appropriate officer in the administration of any of sections 58.2 to 58.4, the process for redress provided under this section applies, instead of the grievance procedure provided for by Part III of the Act, in relation to that decision, act or omission.

(2) The member may appeal from a decision, act or omission of the appropriate officer in the administration of any of sections 58.2 to 58.4 to

(a) the member's commanding officer, if the member is a member in a division, other than an officer;

(b) the Commanding Officer A Division, if the member is a member of the headquarters of the Force, other than an officer; and

(c) the member's deputy commissioner, if the member is an officer.

(3) At the request of a member or the person to whom an appeal has been made, the Commissioner may designate another person to whom the appeal may be made or before whom the appeal may continue.

(4) The appeal shall be made by filing with the person to whom the appeal may be made, within 14 days after the member becomes aware of the decision, act or omission, a statement of appeal and a copy of the decision, if any, of the appropriate officer. The statement of appeal must set out the grounds of appeal and the member's submissions.

(5) Within seven days after receiving the statement of appeal, the person to whom the appeal is made may request from the appropriate officer a written response to the statement of appeal.

(6) The appropriate officer shall file the response with that person within seven days after receiving the request, and shall without delay provide a copy of the response to the member.

(7) The member may file with the person to whom the appeal was made, within seven days after receiving a copy of the appropriate officer's response, a submission replying to any new issue raised by the appropriate officer's response.

(8) The person to whom the appeal was made shall as soon as possible consider any material filed under subsections (4), (6) and (7) and dispose of the appeal by

(a) dismissing the appeal and confirming the decision, act or omission; or

(b) allowing the appeal and ordering appropriate redress.

(9) The decision by that person shall be made in writing and a copy of it and of the reasons for it shall be provided without delay to the member and the appropriate officer.

(10) Any document required or allowed to be filed or provided under this section may be filed or provided by electronic means.

(11) Until a decision is rendered on an appeal, the decision, act or omission under appeal is not affected by the appeal.

COMING INTO FORCE

2. These Regulations come into force on the day on which they are registered.

[44-1-o]

Footnote a

R.S., 1985, c. 8 (2nd Supp.), s. 12

Footnote b

R.S., 1985, c. 8 (2nd Supp.), s. 16

Footnote 1

SOR/94-219

Footnote 2

SOR/88-361

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