Canada Gazette, Part I, Volume 153, Number 15: Regulations Prescribing Physical Injuries

April 13, 2019

Statutory authority
Royal Canadian Mounted Police Act

Sponsoring department
Department of Public Safety and Emergency Preparedness

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

Over the course of the past decade, there has been a public dialogue on whether it is possible for police to provide fair and effective investigations of complaints of other police. In 2014, to promote the transparency of investigations of serious incidents (death, serious injury, or public interest) involving RCMP members, the Royal Canadian Mounted Police Act (the RCMP Act) was amended to clarify the circumstances under which the RCMP must seek independent investigations of allegations of RCMP misconduct that results in “serious injury.” The RCMP Act requires that the term “serious injury” be defined in regulations. New regulations, entitled the Regulations Prescribing Physical Injuries, would be introduced to define what constitutes a serious injury and the circumstances that require an external investigation.

Background

The Commission for Public Complaints Against the RCMP

Civilian review is a key tool used to help build and maintain public confidence in a police force. The Commission for Public Complaints Against the RCMP (the Commission) [now referred to as the Civilian Review and Complaints Commission for the RCMP (CRCC)] is a federal government agency, distinct and independent from the RCMP. The Commission, now the CRCC, serves to ensure that RCMP members are held to the highest standard of accountability in the conduct of their duties by administering an impartial and independent complaints process.

In 2007, in response to a variety of public incidents where police judgment and/or actions were called into question, the Commission launched a public interest investigation, entitled Police Investigating Police, into public concerns about the impartiality of RCMP members conducting criminal investigations into other RCMP members in cases involving serious injury or death between 2002 and 2007.

The Final Report, issued in 2009, concluded that despite compliance in a number of areas, the criminal investigations process lacked the transparency, integrity, accountability and rigour needed to instill public confidence. The report included a number of recommendations regarding procedural changes designed to reinforce best practices in such situations and the potential creation of dedicated investigation units.

More specifically, the Commission called for immediate action on the part of the RCMP to ensure that serious incidents involving members no longer be investigated by the RCMP itself, but rather by external agencies.

In response, the RCMP introduced its External Investigations or Review Policy in 2010, which required, among other things, that the RCMP request an independent external investigation whenever there is a serious injury or death of an individual involving an RCMP employee, or when it appears that an employee of the RCMP may have contravened a provision of the Criminal Code or other statute and the matter is of a serious or sensitive nature.

Enhancing Royal Canadian Mounted Police Accountability Act

On June 19, 2013, the Enhancing Royal Canadian Mounted Police Accountability Act received royal assent, and it came into force on November 28, 2014. This Act amended the RCMP Act by codifying the RCMP’s External Investigations or Review Policy in statute; establishing a framework for handling serious incident investigations involving RCMP members; and establishing a new complaints commission, the CRCC.

More specifically, the RCMP Act, as amended, gives the CRCC broad access to information in the control or possession of the RCMP, it sets out the CRCC’s investigative powers, it permits the CRCC to conduct joint complaint investigations with other police complaints bodies, and it authorizes the CRCC to undertake policy reviews of the RCMP. It also establishes a mechanism to improve the transparency and accountability of investigations of serious incidents (death or serious injury) involving members, including referring the investigations to provincial investigative bodies when possible and appointing independent civilian observers to assess the impartiality of the investigations when they are carried out by the RCMP or another police service.

As a part of its mandate, the CRCC receives complaints from the public concerning the conduct of RCMP members. In its 2017–2018 Annual Report, the CRCC reported receiving 2 644 complaints from the public (2 328 were lodged with the CRCC and 316 with the RCMP).

Serious incident and serious injury

The RCMP Act defines a “serious incident” as an incident in which the actions of an RCMP officer may have resulted in serious injury to, or the death of, any person, or may have constituted a federal or provincial offence that either the federal Minister of Public Safety and Emergency Preparedness, a provincial contract policing Minister, or the RCMP Commissioner decides would be in the public interest to be investigated by an investigative body or by a police force other than the RCMP.

Following a serious incident involving an RCMP member, the RCMP Act requires the RCMP to refer the investigation to an independent, civilian-led provincial investigative body (e.g. the Independent Investigations Office of British Columbia, the Alberta Serious Incident Response Team, the Serious Incident Response Team of Nova Scotia, the Independent Investigation Unit of Manitoba, the Special Investigations Unit of Ontario, the Bureau des enquêtes indépendantes of Quebec).

If that investigative body is unable to investigate, or in jurisdictions that do not have such a body (e.g. Saskatchewan, Nunavut), the RCMP is required to refer the case to another police service to investigate. Only as a matter of last resort will the RCMP investigate the incident. In such cases, the RCMP is required to keep a written record of efforts made to request an external investigation and inform the CRCC.

To operationalize the definition of “serious incident,” “serious injury” must be defined in regulations pursuant to the RCMP Act. The following are real case examples that would qualify as a serious injury:

Objectives

The objective of the proposal is to strengthen RCMP governance by prescribing a definition of “serious injury” in regulations. This will serve to clarify when the RCMP must invoke its obligations to initiate an external serious incident investigation as set out in the RCMP Act. This would increase certainty and transparency concerning how serious injury incidents must be handled.

Description

Under subsection 45.79(1) of the RCMP Act, “serious injury” is defined as “a prescribed physical or psychological injury.” The Regulations Prescribing Physical Injuries (the Regulations) would prescribe the following physical injuries — that are not transient or trifling in nature and for which medical attention was received from a person who is entitled to practise medicine or practise as a nurse under the laws of a province — as serious injuries:

Psychological injury is not being defined at this time. Additional research and consultation is needed, starting with a standardized framework or guidelines for collecting data on police interactions with people who have a mental health disorder. While some police services independently publish figures on this subject, much of it is not comparable across the various jurisdictions due to differences in definitions, as well as differences in the methods used to collect the information. In addition, there are a number of individual and organizational factors attributable to psychological injuries such as depression, post-traumatic stress disorder (PTSD), and anxiety orders. Identifying a single-point stress response for a psychological injury is different in every situation, and should be done by a medical professional on a case-by-case basis, which is where the challenge lies in defining psychological injury.

Regulatory development

Consultation

Since 2012, ongoing consultations on the proposed Regulations have occurred with the RCMP; their input and suggestions have been incorporated in the proposed definition.

The proposed “serious injury” definition was first presented in 2014 to stakeholders during an Assistant Deputy Minister-level Federal/Provincial/Territorial (ADM-FPT) Crime Prevention and Policing Committee, which included stakeholders from contract policing jurisdictions, officials responsible for policing and criminal justice, the CRCC, directors of special investigations units across Canada (i.e. in British Columbia, Alberta, Nova Scotia, Ontario and Manitoba), victims’ rights organizations (e.g. federal ombudsman for victims of crime, Canadian Resource Centre for Victims of Crime, Mothers Against Drunk Driving), national police associations (i.e. Canadian Association of Chiefs of Police, Canadian Association of Police Governance, Canadian Police Association), and provincial (e.g. in British Columbia, Alberta, Ontario and Manitoba) and national (e.g. Canadian Civil Liberties Association) civil liberties groups across Canada.

During consultations, one organization sought further clarity on how a federal definition applicable to the RCMP would work in provincial jurisdictions that already have their own definition established either in policy or provincial statute.

It was suggested that consideration should be given to using an existing definition of serious injury that may be found in other statutes (e.g. Criminal Code, insurance legislation, and health care coding systems). Three territories, 8 provinces, more than 150 municipalities, more than 600 Indigenous communities and 3 international airports contract police services from the RCMP. Therefore, it is recommended that a definition of serious injury be prescribed in federal regulations for consistency in application across all jurisdictions.

Although outside the scope of the proposed Regulations, one of the special investigations units clarified that it would want to be notified of all the serious injury incidents captured by the federal definition, but that it would only pursue investigations if an injury becomes life threatening, requires significant medical intervention, or would substantially impair a person’s use of a limb, organ or the body as a whole.

Due to the fact that it is often difficult to determine the lasting effects of an injury from the onset of an incident, the preference is to have the RCMP notify the provincial equivalent and have that body determine whether it would like to assert jurisdiction over an investigation. Similar to deciding on whether to call for an ambulance during a medical emergency, when in doubt, call first. There should be no delay in contacting a special investigations unit because time is of the essence in collecting evidence in these types of investigations. Evidence not collected in a timely fashion from key witnesses could result in lost evidence.

In 2018, the proposed Regulations were discussed by the ADM-PFT Contract Management Committee, which includes all provinces and territories except Quebec and Ontario, which do not contract the RCMP for their policing services. The proposed definition was discussed and no issues were flagged.

Modern treaty obligations and Indigenous engagement and consultations

Indigenous communities were not specifically consulted on the proposed Regulations. However, the proposed Regulations would enhance independent police oversight in making certain that the serious incident investigations process is impartial and credible, which could positively impact Indigenous communities that are policed by the RCMP and/or those that are within jurisdictions that do not currently have a Serious Incident Investigation Unit or a provincial definition (Nunavut). The proposed Regulations do not impact the Government’s obligations in relation to rights protected by section 35 of the Constitution Act, 1982, modern treaties, or international human rights obligations.

Instrument choice

A Memorandum of Understanding (MOU) between the CRCC and the RCMP was considered as an alternative to regulations, but was ultimately not chosen as the recommended approach because it is a policy document; therefore, not binding.

The RCMP Act requires a serious injury definition to trigger the serious incident investigation process, and that it be prescribed in regulations.

Regulatory analysis

Benefits and costs

The RCMP has been referring serious incident (death and serious injury) cases externally for investigation pursuant to the RCMP’s External Investigations or Review Policy, since it was established in 2010. A serious injury would be defined in regulations to clarify when the RCMP is obligated to initiate an external serious incident investigation as set out in the RCMP Act.

Key stakeholders (provincial special civilian-led investigation units and the police) are already funded to conduct such investigations as part of their mandate, within their jurisdiction. Defining serious injury in regulations would not result in any new costs for the Government of Canada, including the RCMP and the CRCC.

The RCMP Act compliments provincial legislation by recognizing the important role of civilian investigative bodies that have already been established (e.g. British Columbia, Alberta, Nova Scotia, Manitoba, Ontario, Quebec) or will become established. Yukon has a relationship with Alberta where it refers investigations to the Alberta Serious Incident Response Team.

Small business lens

The proposed Regulations do not impact businesses, including small businesses; therefore, the small business lens does not apply.

One-for-one rule

The one-for-one rule does not apply as the proposed Regulations have no impact on businesses.

Regulatory cooperation and alignment

This proposal is not related to a work plan or commitment under a formal regulatory cooperation forum (e.g. the Canada–United States Regulatory Cooperation Council, the Canadian Free Trade Agreement Regulatory Reconciliation and Cooperation Table). However, the federal, provincial and territorial governments have collaborated through the ADM-FPT on Crime Prevention and Policing Committee and the ADM-FPT on Contract Management Committee to develop the proposed definition.

In addition, the proposed definition outlined above is aligned with, and based on all the main elements of, existing provincial definitions (e.g. in British Columbia, Alberta, Nova Scotia, Ontario) in statute and/or policy. However, if a provincial definition of a “serious injury” (or serious harm) in a particular jurisdiction already exists, the RCMP has already agreed to abide by that definition if the provincial definition is more inclusive.

The proposed definition would only apply to the RCMP and does not require other municipal or provincial police services to use this federal definition since they may already have their own definition, which may be similar to the federal definition.

Strategic environmental assessment

In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan was conducted and concluded that the proposed Regulations would not have any positive or negative environmental impacts; therefore, a full strategic environmental assessment is not required.

Gender-based analysis plus

The proposed Regulations defining “serious injury” apply to all Canadians. However, police-reported crime in Canada, as measured by the Crime Severity Index (CSI), increased for the third consecutive year in 2017, with men and younger adults much more likely to be involved in crime and incarcerated.

The Office of the Correctional Investigator reports that the incarceration rate for Indigenous adults in Canada is estimated to be 10 times higher than the incarceration rate of non-Indigenous adults. These men and women are disproportionately involved in use of force interventions and incidents of prison self-injury. Between 1999 and 2016, the last year for which there was complete coroner data, the rate of police-related deaths in Nunavut was more than 9 times higher than Ontario’s rate.

Crime is not the only forum for interaction with police. Statistics Canada reported that while the majority of people with mental health disorders do not commit criminal acts, contact with the police is relatively more common among this population. Approximately one in five of all police interactions includes women suffering from mental health or substance abuse disorders. Reasons for contact are not necessarily criminal in nature and can be complex, resulting from social and systemic factors, such as homelessness and poverty, weak social ties, or a lack of community-based health services, leaving police as the first responders in crisis situations or after regular health facility hours. These situations are the most unpredictable and dangerous to which officers must respond, and can be equally, if not more, dangerous for the person with the disorder.

A comprehensive definition of serious injury would apply to all, regardless of gender; however, it would most benefit men and Indigenous individuals, as they most frequently experience encounters with the police, generally.

Implementation, compliance and enforcement, and service standards

The RCMP will amend its internal operational policies and procedures in support of the serious injury definition to assist its staff in complying with the requirements in the RCMP Act following a serious incident involving an RCMP member.

Departmental officials from the Department of Public Safety and Emergency Preparedness will continue to monitor the implementation of the serious injury definition through the RCMP’s annual performance measurement tools.

Contact

Jennifer MacKenzie
Public Safety Canada
269 Laurier Avenue West, 12th Floor, Office 12A-15
Ottawa, Ontario
K1A 0P8
Telephone: 613‑949‑9076
Email: jennifer.mackenzie4@canada.ca

PROPOSED REGULATORY TEXT

Notice is given that the Governor in Council, pursuant to subsection 45.79(3) footnote a of the Royal Canadian Mounted Police Act footnote b, proposes to make the annexed Regulations Prescribing Physical Injuries.

Interested persons may make representations concerning the proposed Regulations within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Jennifer MacKenzie, Public Safety Canada, 269 Laurier Avenue West, 12th Floor, Office 12A-15, Ottawa, ON K1A 0P8 (tel.: 613‑949‑9076; email: jennifer.mackenzie4@canada.ca).

Ottawa, April 4, 2019

Jurica Čapkun
Assistant Clerk of the Privy Council

Regulations Prescribing Physical Injuries

Physical injuries

1 For the purposes of the definition serious injury in subsection 45.79(1) of the Royal Canadian Mounted Police Act, the following physical injuries — that are not transient or trifling in nature and for which medical attention was received from a person who is entitled to practice medicine or practice as a nurse under the laws of a province — are prescribed:

Coming into force

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