RCMP |
Canada (Royal Canadian Mounted Police Public Complaints Commission) v. Canada (Attorney General)
T-25-03
2004 FC 830, Russell J.
9/6/04
72 pp.
Judicial review of decision of Commissioner of Royal Canadian Mounted Police (RCMP Commissioner) refusing to comply with request made pursuant to Royal Canadian Mounted Police Act, s. 45.41(2)(b) by applicant for certain materials under control of RCMP--Applicant, impartial, independent body that investigates complaints by public concerning performance of duties by RCMP members, officers (s. 45.35(1))--Complaints first investigated by RCMP (ss. 45.37(4) and 45.36)--If complainant not satisfied with RCMP Commissioner's report, may submit matter to applicant for further review (s. 45.41(1))--Judicial review in present case originating from complaint filed with applicant as result of search conducted by RCMP and Ontario Provincial Police (OPP) of complainant's property--Because based on information provided by confidential human source, Information sworn in support of search warrant, ordered sealed--General search warrant granted--Complainant filed complaint, alleging, inter alia, search warrant improperly obtained, and raising questions, e.g. why did police get search warrant for barn--RCMP non-commissioned officer in charge of complaints and internal investigations found no improper conduct on part of RCMP officer--Letter of disposition did not specifically report on results of investigation into allegation RCMP officer improperly obtained search warrant --Complainant requested review of complaint pursuant to s. 45.41, applicant requested RCMP Commissioner's report and such other materials under control of RCMP relevant to complaint pursuant to s. 45.4--Package received did not include material sworn in support of search warrant, and included only vetted copy of RCMP officer's notes-- Applicant determined further inquiry warranted--Evidence OPP investigator given access to information sought by applicant--RCMP Commissioner of view that applicant not entitled to sealed materials--Applicant provided with vetted copies unsworn, sworn information in respect of authorization for warrant--Information vetted to delete information possibly leading to identification of confidential human source-- Issues: whether RCMP Commissioner failed to fulfil statutory obligation under s. 45.41(2)(b), i.e. furnish applicant all materials under RCMP's control relevant to complaint; whether s. 45.41(2)(b) allows RCMP Commissioner to withhold information; whether delivery of information infringes police informer privilege or policy upon which privilege founded--Scope of complaint not limited to how search warrant executed, includes how warrant obtained--Fact that RCMP left in position of determining what is relevant and should be disclosed significant problem with civilian overview scheme--No way for applicant to determine whether full disclosure of relevant material made--Fact that under OPP process, information remains with police, whereas applicant not police officer, not significant distinction concerning issues of relevance, and not justifying withholding information provided to OPP officer from applicant--Nothing on record to indicate RCMP addressed allegation search warrant improperly obtained--As to whether applicant has right to take legal action to compel RCMP Commissioner to provide relevant material, Rankin (Re), [1991] 1 F.C. 226 (T.D.) distinguished--Rankin interpreted powers under s. 45.45(11)--S. 45.41(2), section at issue in present case, differently worded, deals with different kind of investigation --S. 45.41(2) providing that RCMP Commissioner "shall furnish" applicant with material under its control relevant to complaint--Dicta in Rankin that "inappropriate that the Commission take the initiative" not applicable to Act generally--Plain wording of s. 45.41(2) shows that subsection mandatory, not discretionary--S. 45.42(1) makes review of complaints by applicant mandatory--Mandatory duty requires mandatory furnishing of materials under s. 45.41--Nothing inappropriate with applicant taking legal action for limited purpose of securing materials needed to do its statutory duty--Applicant thus having capacity, jurisdiction to seek assistance of Court to ensure compliance with ss. 45.42, 45.41--As respondent has public legal duty to provide materials referred to in s. 45.41, applicant thus satisfying legal grounds for mandamus and declaratory relief--As to issue of police informer privilege, fact that disclosures have taken place does not affect privilege--Only issue whether police informer privilege preventing disclosure of materials in this case--R. v. Leipert, [1997] 1 S.C.R. 281 applied--In case at bar, confidential informant provided information to RCMP subject to privilege, there is no accused, and "innocence at stake" exception not arising--Court bound to apply law on informer privilege as it exists--S. 45.42(1) not creating exception to privilege--Court has no discretion, cannot weigh interests--Assertion of informer privilege herein seriously impeding Complaints Commission's ability to review complaints in accordance with s. 45.42, but remedy must come from Parliament--If Court wrong, or if information not protected by privilege, although release of information prohibited by court order (Sealing Order), nothing to prevent issuance of order varying Sealing Order--Application dismissed--Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10, ss. 45.35(1) (as am. by R.S.C., 1985 (2nd Supp.), c. 8, s. 16; S.C. 1996, c. 15, s. 22), 45.36 (as am. by R.S.C., 1985 (2nd Supp.), c. 8, s. 16), 45.37(4) (as am. idem), 45.4 (as am. idem), 45.41 (as am. idem), 45.42 (as am. idem), 45.45(11) (as am. idem; as am. by S.C. 1996, c. 15, s. 23).