Federal Court Decisions

Date: 20040609

Docket: T-25-03

Citation: 2004 FC 830

Ottawa, Ontario, this 9^th 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 the Applicant lacks the authority to demand production of these documents and that police informer's privilege prohibit the Respondent from releasing them.

[51]            The Applicant applied to the Ontario Court of Justice for an order varying the Order so as to permit the Complaints Commission to obtain a copy of the Sworn Information. The Applicant subsequently withdrew that application and, instead, initiated the within Application for mandamus and declaratory relief.

[52]            To facilitate the Applicant's investigation, and narrow the issues in this Application, the Respondent furnished the Applicant with as much information as the strictures of police informer privilege would allow. It did this by:

a. providing the Applicant 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 house which, as noted above, was refused by the Ontario Court of Justice. The Unsworn Information was vetted by the RCMP so as to delete any information that it believes may lead to the identification of a confidential human source; and

b. changing the terms of access to the Sworn Information through an application under subsection 487.3(4) of the Criminal Code to the Ontario Court of Justice to vary the Order's terms and conditions. The application was granted and the Respondent provided the Applicant with a vetted copy of the Sworn Information which, in accordance with the directions of the Ontario Court of Justice, was vetted by the RCMP and a federal prosecutor so as to delete any references that might identify a confidential human source.

[53]            Despite the RCMP's efforts to provide the Applicant with as much information and material as the police informer's privilege allows, the Applicant has decided to proceed with this Application.

The Applicant Is Without Jurisdiction and Capacity to Bring this Application

[54]            The Respondent says that, in commencing this Application, the Applicant seeks to extend the powers given to it under Part VII of the Act when, as a matter of legislative policy, Parliament saw fit not to grant it the capacity to initiate legal proceedings (Canada (Privacy Commissioner) v. Canada (Attorney General), [2003] B.C.J. 1344 (S.C.)). The Applicant cannot succeed in this Application because it lacks the capacity to make it.

[55]            The Act clearly and completely describes the Applicant's powers and the power to initiate legal proceedings is not among them. The Applicant, therefore, lacks the capacity to initiate this Application and also acted without authority when it applied under ss. 487.3(4) of the Criminal Code to obtain a copy of the Sworn Information, which was subject to a Sealing Order issued by the Ontario Court of Justice.

[56]            The Respondent says that the Federal Court has already ruled on the inappropriateness of the Applicant initiating an application with the court pursuant to s. 38 of the Canada Evidence Act to determine the validity of an objection made by the RCMP, - pursuant to s. 37 of the same Act - to disclose information that would be injurious to the public interest. The Federal Court of Appeal subsequently affirmed the reasons and conclusions of the Trial Division in this regard. The same analysis and conclusions apply to this case.

[57]            The Respondent says it has now been clearly established that it is inappropriate for the Applicant to take an active role in gathering evidence by commencing an application for an order in the nature of mandamus or a declaration (Re Canada (RCMP), Public Complaints Commission, [1992] F.C.J. No. 502 (C.A.) affirming [1990] F.C.J. No. 915 (T.D.)). As a quasi-judicial tribunal, the Applicant has an obligation to appear and act impartially.

The Application Does Not Satisfy the Prima Facie Requirements for Issuance of Mandamus or Declaratory Relief

[58]            The Respondent says that the legal and factual issues in this Application flow from the relief sought by the Applicant.

[59]            In applying for an order in the nature of mandamus, the Applicant seeks to compel the RCMP Commissioner to provide it with a copy of the Sworn Information and Officers' Notes. The requirements the Applicant must meet in order for mandamus to issue are cumulative and must be strictly met (Apotex v. Canada (Attorney General), [1994] 1 F.C. 742 (C.A.) and Rocky Mountain Ecosystem Coalition v. Canada (National Energy Board), [1999] F.C.J. No. 1223 (T.D.)). Among other things, the Applicant must demonstrate that:

a. the RCMP Commissioner has a public legal duty to provide the Applicant with a copy of the Sworn Information and Officers' Notes;

b. the RCMP Commissioner owes this duty to the Applicant; and

c. no other adequate remedy is available to the Applicant.

[60]            The same requirements are at issue in an application for declaratory relief. The difference lies in the remedy sought, namely, a declaration that the RCMP Commissioner cannot refuse to furnish the Applicant with a copy of the Sworn Information and Officers' Notes (Montana Band of Indians v. Canada, [1991] 2 F.C. 30 (C.A.), Laurentian Pilotage Authority v. Pilotes du Saint-Laurent Central Inc (1993), 74 F.T.R. 185 (T.D.) and Smith v. Canada (Minister of Citizenship and Immigration), [1998] 3 F.C. 144 (T.D.)). The Respondent contends that the Applicant does not meet any of the foregoing requirements.

[61]            First, the Respondent says that para. 45.41(2)(b) of the Act does not impose a public legal duty on the RCMP Commissioner that is owed to the Applicant. Although the Applicant effectively claims that the RCMP Commissioner has a duty to furnish it with material under the RCMP's control that, in the opinion of the Chair, is relevant to a Complaint, that is not what para. 45.41(2)(b) of the Act stipulates. It says that the RCMP has a public legal duty to provide the Applicant with material under its control that is "relevant" to a complaint. Absent further direction from Parliament, the issue of what is relevant to a complaint is a matter over which legitimate differences can arise between the RCMP Commissioner and the Applicant. In such cases, the Applicant cannot insist on its interpretation of what is relevant for the purposes of para. 45.41(2)(b).

[62]            The Respondent argues further that, had Parliament intended to impose upon the RCMP Commissioner a public legal duty owed to the Applicant, it would have included language in ss. 45.41(2)(b) similar to that in para. 24.1(3)(a) of the Act (which applies to oral hearings pursuant to ss. 45.45(4)) and which authorizes the Applicant to summon any person to give oral or written evidence on oath and to produce such documents and things under that person's control as the Complaints Commission deems necessary for a full investigation and consideration of the matter.

[63]            Second, the Respondent says that the RCMP Commissioner does not have a public legal duty to provide the Applicant with a copy of the Sworn Information and Officers' Notes because they are not relevant to the Complaint under investigation. The Complainant does not take issue with the grounds on which the search warrant was issued. In pursuing the matter with the RCMP, the Complainant posed a series of questions, only one of which related to the reasons for conducting the search. In further pursuing the matter with the Applicant, the Complainant made it clear that his concern relates to the way in which the search warrant was executed and not the underlying grounds for its issuance. The Sworn Information and Officers' Notes are, therefore, not relevant to the Complaint and, as a consequence, are not relevant within the meaning of para. 45.41(2)(b) of the Act.

[64]            Third, the Respondent asserts that the Applicant's proper and only recourse if dissatisfied with what it receives under ss. 45.41(2)(b) of the Act is to proceed directly to an oral hearing under s. 45.43 of the Act where it can summon members or officers of the RCMP to attend before the Applicant and ask them to deliver up specified documents. The Applicant has not done this.

Release of the Material Sought by the Applicant Is Prohibited by Police Informer's Privilege

[65]            The Respondent points out that the Applicant concedes that the information deleted from the Sworn Information and Officers' Notes is subject to police informer's privilege and that sharing this information in a limited way among police officers and Crown attorneys does not breach the privilege. The Applicant argues, however, that it is not subject to the privilege and is entitled to unfettered access to the Sworn Information and Officers' Notes.

[66]            The Respondent points out that the Supreme Court of Canada has considered the nature and scope of police informer's privilege on three occasions and affirmed that it is defined and governed by the principles enunciated in R. v. Liepert (1997), 112 C.C.C. (3d) 385 (S.C.C.) at pp. 4 -10, Canada (Solicitor General) v. Ontario (Royal Commission of Inquiry into the Confidentiality of Health Records), [1981] 2 S.C.R. 494 at pp. 23- 28, and Bisaillon v. Keable et al, 7 C.C.C. (3d) 385 (S.C.C) at pp. 24 - 26):

a.              police informer's privilege is a rule of law that is fundamental to the administration of the criminal justice;

b.             the privilege is that of the Crown, which is in receipt of information under an assurance of confidentiality, and prevents disclosure not only of the informer's identity, but also any information which might implicitly reveal his or her identity;

c.             the privilege recognizes informer's importance in helping police prevent, detect and investigate crimes. Without the privilege, the police would be unable to maintain sources of information, who would not be forthcoming unless assured that their identity will not be divulged;

d.             the privilege arises when peace officers obtain information from an informer in the course of their duties and can neither be waived by the Crown nor abridged by a court without the informer's consent;

e.              police informer's privilege is general in scope and applies to all legal proceedings of which criminal prosecutions, civil actions and public inquiries are examples of where it has been asserted and upheld by the courts. The public policy that gave rise to the privilege is the same no matter what form a proceeding takes;

f.               the application of police informer's privilege is not subject to any formal requirement and, if no one raises it, the court must apply it of its own motion;

g.             the common law has made secrecy regarding police informers subject to a special system with its own rules that differ from those applicable to Crown privilege. Unlike Crown privilege, which lies either in national security or in the effective conduct of government, the procedure for claiming police informer's privilege neither requires a sworn statement from a Crown Minister nor an examination by a court of the documents or information in issue;

h.             the courts are given no power to weigh or evaluate various aspects of the public interest which are in conflict since the law has already resolved the issue itself. It has decided once and for all, subject to being changed by legislation, that information regarding police informers' identity will be a class of information that is in the public interest to keep secret, and that this interest will prevail over the need to ensure the highest possible standard of justice; and

i.               the privilege is subject to only one exception, namely, criminal prosecutions where disclosure of an informer's identity is necessary to demonstrate the innocence of an accused. There are no exceptions in proceedings other than criminal.

[67]            The Respondent takes the position that it is clear from the foregoing that, although ss. 45.41(2)(b) of the Act states that the RCMP Commissioner "shall furnish the Commission Chairman with ... such other material under the control of the Force as are relevant to the complaint," this provision is nowhere near specific enough to exempt the Applicant from such an important and absolute rule as police informer's privilege (for example, see Bisaillon, supra).

[68]            Even if the Applicant had proceeded to an oral hearing and summoned an RCMP member to produce unvetted copies of the Sworn Information and Officers' Notes, and such were relevant to the Applicant's inquiry, the common law privilege that attaches to a police informer's identity would have prohibited the release of these documents to the Applicant.

[69]            The Applicant's authority to summon persons to give oral or written evidence on oath and to produce documents and things under their control during an oral hearing is subject to ss. 45.45(8) of the Act which stipulates that nothing is admissible in evidence at any inquiry that would be inadmissible in a court by reason of any privilege under the law of evidence.

[70]            The Respondent argues that the Applicant clearly falls outside the exception to police informer privilege enunciated by the Supreme Court of Canada as neither the Applicant's investigation nor the within Application constitute a criminal trial. Nor does non-disclosure of an unvetted copy of the Sworn Information and Officers' Notes raise an issue as to the Complainant's innocence, since he was not charged with any offence as a result of the impugned search.

[71]            The Applicant dismisses the foregoing by asserting that decisions of the Supreme Court of Canada on police informer privilege are not applicable to this case because they involve either an application by an accused person to obtain the identity of an informer or an application by a commission of inquiry which intends to publicly disseminate the information in issue. However, the Respondent points out that the Supreme Court of Canada has already considered and rejected the Applicant's grounds for expanding the exception to police informer's privilege.

[72]            In Ontario (Royal Commission of Inquiry into the Confidentiality of Health Records), supra, a Royal Commission established under the Public Inquiries Act to assess whether legislation administered by the Minister of Health adequately protected the medical records of patients also sought the identity of a police informer.

[73]            The Royal Commission operated under a regime similar to that of the Applicant. It could summon any person to give evidence under oath or produce in evidence such documents as the Royal Commission specified as long as they were relevant to its inquiry, and even though evidence inadmissible in a court of law by reason of any privilege would also be inadmissible before the Royal Commission. Proceedings were also allowed in camera if necessary.

[74]            In the Supreme Court's view, the fact that the identity of the police informer was neither sought by an accused in a criminal prosecution nor a litigant in a civil proceeding, but rather by the Royal Commission, did not change the application of police informer privilege. The Supreme Court affirmed that the Crown cannot be required to disclose the names of informers to whom it has given an assurance of confidentiality.

[75]            The Respondent also points out that the Saskatchewan Court of Appeal adopted the same approach and reached the same conclusion in Royal Canadian Mounted Police v. Saskatchewan (Commission of Inquiry), supra. At issue in that decision was whether a Commission of Inquiry established under the Public Inquiries Act, R.S.S., c. P-38 to examine police investigation techniques and prosecutorial processes could compel disclosure of a police informer's identity. The Saskatchewan Court of Appeal refused to broaden the exception to police informer privilege in light of previous Supreme Court of Canada decisions on this issue.

[76]            The Applicant further argues that, since police informer privilege permits privileged information to circulate among members of the RCMP, Crown attorneys and court officials involved in obtaining the search warrant in issue, and thereafter in varying the sealing order in respect of the Sworn Information, it necessarily follows that the circle of people entitled to see the vetted information should be expanded to include the Complaints Commission. In the Applicant's view, extending the exception to police informer privilege to include the Chair of the Complaints Commission is warranted because she is trustworthy, has a legitimate purpose in obtaining the information and undertakes not to reveal the identity of the informer or undermine the public policy upon which the privilege is founded.

[77]            The Respondent says that the Applicant's argument betrays a fundamental misunderstanding of the nature and operation of police informer privilege. The privilege belongs only to the Crown and the informer, and the entitlement of peace officers and crown attorneys to deal with privileged information derives solely from their status and role as Crown agents charged with the responsibility of enforcing and administering criminal law (Bisaillon v. Keable, supra, at pp. 421 and 422). The privilege arises and operates as a matter of law when peace officers obtain information from an informer in the course of their duties and its entitlements and obligations cannot be extended to someone other than peace officers and Crown attorneys on the basis of personal characteristics such as trustworthiness or personal and professional integrity. Nor is a legitimate purpose in obtaining privileged information relevant. Informer privilege is of such importance that it cannot be balanced against other interests.

[78]            Nor does the fact that the Sworn Information filed with the Ontario Court of Justice contains information that might reveal the identity of an informer assist the Applicant. Bearing in mind that apparently innocuous facts may be enough for confidential sources to be recognized by someone familiar with them or their circumstances (Liepert, supra, at paras. 16 and 32), the RCMP took the added precaution of sealing the Sworn Information pursuant to ss. 487.3(2) of the Criminal Code even though it did not name a confidential source. The RCMP subsequently determined that a vetted copy of the Sworn Information could be released without risk of revealing the identity of a confidential informer. None of the foregoing can or does constitute a waiver or abridgment of the privilege.

[79]            The Applicant argues that, without access to information and material that may identify a confidential source, it will be unable to review Complaints against RCMP members who claim to be acting on information provided by such sources. In the Applicant's view, the significance of this concern is magnified by the recently enacted Anti-Terrorism Act, S.C. 2001, c. 41 which contemplates the possibility of many cases involving intrusive police conduct where no charges are laid.

[80]            However, the Respondent argues that the Supreme Court of Canada has decided that it is always contrary to the public interest to require disclosure of information from a peace officer that may reveal the identity of a police informer, and that this aspect of the public interest always takes precedence over the need to do more complete justice (Liepert, supra, at para. 12, p. 6 and Bisaillon, supra, at pp. 415 and 419). The Supreme Court of Canada has also stated that police informer's privilege has even greater justification in relation to the protection of national security against violence and terrorism (Canada (Solicitor General) v. Ontario (Royal Commission of lnquiry into the Confidentiality of Health Records), supra p. 27).

[81]            While the Respondent concedes that there is no question that the Applicant's ability to investigate a Complaint is limited by police informer's privilege, the Complaints Commission is far from being rendered ineffectual by this limitation, as evidenced by the disclosure obtained in this case. In any event, the Respondent says that it is for Parliament, and not the Court, to decide whether the Applicant should continue with the current means at its disposal.

Release of the Material Sought by the Applicant Is Prohibited by Court Order

[82]            When the Application was initiated, disclosure of the Sworn Information and Officers' Notes was also governed by a Sealing Order issued by the Ontario Court of Justice pursuant to s. 487.3(2) of the Criminal Code, which states in relevant part that "[an order denying access to information used to obtain any warrant] may be made ... on the ground that the ends of justice would be subverted by the disclosure (a) if disclosure of the information would (I) compromise the identity of a confidential informant ... ." The Sealing Order states as follows:

I do hereby order and direct that this packet, including its contents, is to be kept in the custody of the court in the office of the clerk thereof in a safe, secure and private place to which the public has no access, so as to ensure the privacy and confidentiality of the contents and the packet is not to be delivered to or opened by any person except upon the order of a subsequent judicial officer.

[83]            The parties do not dispute that the packet referred to in the Sealing Order contains the Sworn Information. But the Respondent takes the position that the terms of the Sealing Order, when read in context with the purposes for which it was obtained under ss. 487.3(2), admits no exceptions regarding who may have access to the Sworn Information or its contents. By necessary implication, the Respondent argues, the Sealing Order's prohibition also extends to the Officers' Notes, which contain information used to prepare the Sworn Information.

[84]            To facilitate the Applicant's investigation, the Respondent applied under ss. 487.3(4) of the Criminal Code to the Ontario Court of Justice to vary the Sealing Order's terms and conditions. Satisfied that the identity of confidential informants could be protected by editing the Sworn Information, the Court directed a federal prosecutor to edit it in a manner that would allow the Applicant enough information to determine if there were sufficient grounds to issue the warrant without compromising the identity of confidential informant, and then to provide the Applicant with a vetted copy of the Sworn Information.

[85]            Despite receiving a copy of the Sworn Information edited in accordance with the directions of the Ontario Court of Justice, the Applicant apparently feels that it still cannot properly investigate the Complainant's concerns without the vetted information. Whatever the merits of the claim, the Respondent takes the position that neither ss. 45.41(2)(b) nor any other provision of the Act requires the Respondent to breach a court imposed obligation to keep confidential documents and information protected by police informer's privilege. The Applicant appears to suggest otherwise but fails to explain why.

Analysis

A.         Preliminary Issues of Concern

Scope of Complaint

[86]            In the Complainant's original Complaint to the RCMP, he raised the following concerns:

1.              Why was I arrested?

2.              Why was my home searched?

3.              Why was my locked bedroom searched?

4.              Who pays for my lock the RCMP cut?

5.              Three hours lost time at work (unpaid);

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;

7.              Why was I chased from my home and property while they waited for a second warrant under the threat of being arrested again?

Affidavit of Shirley Heafey, February 6, 2003, para. 16. Exhibit B.

[87]            By letter dated June 19, 2000, the RCMP NCO i/c, Complaints and Internal Investigations, disposed of this complaint pursuant to s. 45.4 of the Act. The NCO i/c found no improper conduct on the part of the RCMP member and advised the Complainant as follows:

This letter provides you with a final report of the investigation conducted following your complaint against Constable [deleted] regarding his participation in the execution of a search warrant for your barn on December 21, 1999.

During your meeting with the investigator assigned to this file on March 28, 2000, Sergeant Matchett explained to you the circumstances surrounding this search, the role of the RCMP officers who participated in this operation and the results of the investigation conducted following your complaint.

Indeed, the investigation revealed that the RCMP members present at that time had acted properly and that they had legal authority to be on your property. Sgt. Matchett also explained to you that some of the information used to obtain the search warrant for your barn and to formulate reasonable grounds came from confidential sources and as such, could not be made available to you. The investigator noted that you identified no problems with the explanations given to you. Consequently, this file will be concluded without further action on our part.

If you are not satisfied with the results of this investigation, you have the right to refer your complaint in writing to the RCMP Public Complaints Commission for review, at the following address: ...

[88]            My reading of this letter suggests that the RCMP felt they had reasonable grounds to obtain the warrant but that some of the information used to establish reasonable grounds came from confidential sources that could not be revealed to the Complainant.

[89]            The Complainant then turned to the Complaints Commission and, in a letter of June 26, 2000, laid out the following concerns:

To the RCMP Complaints Commission:

I would request a review to be done of the decision of, V.L. Couture Staff Sargent in charge of complaints & internal investigation, section central region. RCMP File Number 2000-LINT-057.

From Mr. Couture correspondence it is my opinion my complaint was not addressed in the slightest.

Mr. Couture suggested that I never identified any problems with the explanations given to me by Mr. Matchett, this is not true, I was 100% unhappy with his explanations.

In closing I wasn't happy with the way the warrant was executed, but whatever. My concerns are how they had been through my house before I got home, (other than my locked bedroom), then arrest me on a warrant that was negative, and last take my keys and entre (sic) my bedroom, all of this with no warrant.

Enclosed are copies of: the search warrant, my concerns, RCMP complaints report, RCMP Public Complaints Receipt.

This one I neve signed off

[90]            The Respondent makes much of the words "In closing I wasn't happy with the way the warrant was executed . . ." and suggests that the gravamen of the Complaint was not how the search warrant was obtained, but how it was executed.

[91]            This is a strange logic. The fact that the Complainant says he was not happy "with the way the warrant was executed" does not meant that he was happy with the way the warrant was obtained. In fact, referring back to his Complaint and the RCMP response, he categorically states "my complaint was not addressed in the slightest." In any event, under s. 45.41 of the Act it is the "complaint" that is referred to the Complaints Commission, and, under 45.41(2)(b), the information and materials to be supplied by the RCMP Commissioner are those that are "relevant to the complaint."

[92]            In this case, the "Complaint" is the Complainant's original letter to the RCMP which asks the question "why did the police get a search warrant for my barn in the first place."

[93]            Efforts by the Respondent to narrow the grounds of the Complaint so as to exclude information and materials that might answer this fundamental question are troubling.

Relevancy

[94]            In response to the Complainant's referral of June 26, 2000, the Complaints Commissioner made the following request to the RCMP Commissioner pursuant to s. 45.41(2)(b) of the Act by letter dated July 10, 2000:

We have recently received correspondence from the above-noted Complainant indicating dissatisfaction with the disposition of his complaint by the RCMP and requesting a review of that disposition. Enclosed is a copy of his written request to the Commission which is supplied to you pursuant to paragraph 45.41(2)(a) of the RCMP Act. We also enclose for your reference a copy of Mr. [deleted] complaint and a copy of the RCMP's letter of disposition.

We would draw your attention to paragraph 45.41(2)(b) of the RCMP Act, which requires you to furnish the Commission Chair with the report under section 45.4 in respect of the complaint, and such other materials under the control of the Force as are relevant to the complaint, and such other materials under the control of the Force as are relevant to the complaint. We look forward to receiving these materials at your very earliest convenience.

It would also be appreciated if you could inform the subject members of this request for review.

[95]            Once again, this request makes it perfectly clear that what is being reviewed is the whole "complaint" and that the information and materials requested are in relation to the whole "complaint."

[96]            In response to the Complaint's Commissioner request of July 10, 2000, the RCMP sent the following letter dated September 27, 2000:

Reference is made to your letter dated July 10, 2000, following [deleted]'s request for a review by the P.C.C.

As required, please find attached a copy of pertinent documents in the Complaint lodged by Mr. [deleted].

I would appreciate receiving an acknowledgement of receipt of these documents as soon as possible.                

[97]            There are several important points to note about this response. To begin with it purports to be a complete response to the Complaints Commissioner's letter of July 10, 2000: "As required, please find attached a copy of pertinent documents in the Complaint lodged by [the Complainant]." It doesn't say that information has been edited out. It doesn't say that some information has not been enclosed. It doesn't say that "to the best of the RCMP's knowledge and belief, and after searching all relevant files" the information enclosed is all that is available in response to the Complaint Commissioner's request. Anyone reading this letter would assume that it is a complete and unqualified response to the request under s. 45.41(2)(b) of the Act. But it was not.

[98]            The following information and materials were missing:

1.          the Information to obtain a search warrant sworn by one of the RCMP officers involved;

2.          the RCMP officer's notes had been edited to remove certain information;

3.          other relevant material was not included at all.

[99]            1 and 2 would become immediately apparent from an examination of what was enclosed. The recipient would have no way of knowing that 3 was a problem. The letter could easily have offered an explanation for the missing information, or at least warned the Complaints Commission that there were problems in ensuring completeness. But it doesn't. The response purports to be a response to the request of the Complaints Commission and that request specifically referred to s. 45.41(2)(b) of the Act which says that the RCMP Commissioner, inter alia, shall "furnish the Commission Chairman with .... such other materials under the control of the Force as are relevant to the Complaint."

[100]        As the Respondent points out, reasonable people can disagree about what is "relevant." Hence, s. 45.41(2)(b) leaves the Complaints Commission highly dependent upon the RCMP to identify and disclose what is relevant. There is no way on the facts before me, to determine whether full disclosure of all relevant material has been made pursuant to s. 45.41(2)(b).

[101]        In my view, this constitutes a significant problem with the civilian overview scheme set up under Part VII of the Act. It leaves the RCMP with the power to determine what is, and what is not, relevant to a complaint made against a member of the RCMP. The RCMP controls to a considerable extent the materials and the information that the Complaints Commission is allowed to see. From the perspective of public perception, this cannot help but weaken the confidence of Canadians in the civilian investigative process. It is a problem that is compounded by several other factors in this case. In practice, the Complaints Commission is almost entirely dependent upon the quality of the information and materials supplied by the RCMP. Nothing meaningful can be done under the investigative scheme of the Act unless the Complaints Commission has access to all relevant information and, by and large, the RCMP are left in the position of determining what is relevant and what should be disclosed.

[102]        The role that "relevancy" can play in the investigative process, is starkly dramatized by the facts of this case. Following the commencement of this judicial review application, the Complaints Commission learned of an unsworn information in respect of an authorization for a warrant to search the Complainant's house. That search warrant was refused by a judge of the Ontario Court, Provincial Division.

[103]        The General Search Warrant granted by Provincial Court Judge Glowacki on December 21, 1999, was only for the purpose of entering the Complainant's green barn and making observations of the contents inside. The authorization to search the house was refused.

[104]        Yet the information and materials concerning the house were not disclosed in the RCMP letter of September 27, 2000, that purported to respond to the letter of the Complaints Commissioner of July 10, 2000, in which the Complaints Commissioner requested all materials relevant to the Complaint. And the Complaint clearly refers to activities in relation to the house as well as the barn, quite apart from the fact that the operation against the barn was part of a general operation against the Complainant's property and it would be highly material to know that the warrant to search the house was refused.

[105]        The Respondent might take the position that materials related to the house are not related to the barn. But this would be to take a very narrow (and in my opinion, unreasonable) view of the Complaint and the materials relevant to it. It suggests that if RCMP conduct is being investigated by the Complaints Commission, and the RCMP are asked for all relevant materials, the interpretation of "relevance" might not be the same as that of a disinterested party asking for the same materials. This is another troubling aspect of the Complaints process thrown up by this Application.

Inconsistency

[106]        The record shows that on or about October 30, 2000, the Complaints Commission decided that further investigation of the Complaint was warranted and personnel were directed to investigate in accordance with ss. 45.42(3)(c) of the Act.

[107]        In the course of this further investigation, personnel of the Complaints Commission acquired evidence assembled by the OPP Complaints Bureau that reveals that OPP investigator Sergeant Major Sandra McNamara, who reviewed the Complaint as against the OPP officers involved on the action on the Complainant's property, was given access to the information that the Chair of the Complaints Commission is seeking in this Application (including the name of the confidential source) and was also given the opportunity to interview the confidential source as part of her investigative role in the provincial public Complaints scheme.

[108]        The reason why the OPP were involved in the search of the Complainant's property was because of the Memorandum of Understanding that exists between the RCMP, the OPP and the Thunder Bay Police concerning the Tri-Force Drug Enforcement Unit. That agreement specifically provides that "agents and sources who have or will likely provide information regarding an investigation will be dealt with in accordance with the policy of the police service which handles them":

Complaints generated against Ontario Provincial Police or Thunder Bay Police Service Members will be investigated in accordance with the Police Services Act. A complaint against a Royal Canadian Mounted Police Member will be investigated in accordance with the policy of the Royal Canadian Mounted Police.

[109]        The OPP complaint's investigator reported as follows:

As the investigator for this public complaint I interviewed the subject officers and reviewed officers' notes.

With the exception of Detective [deleted] I have not copied or included notebook entries because to do so would identify a confidential informant. I am convinced the notes I reviewed are an accurate account of the informant's information and would constitute reasonable and probable grounds to believe evidence of marijuana would be found both in the complainant's barn and residence. These notes were made well in advance of the public complaint by Mr. [deleted] and there is nothing to suggest they are anything other than factual accounts of valid information received.

I have also interviewed the confidential informant and believe the information the officers state they received from this informant was given to them by the informant.

From my interviews with the officers involved and the informant I believe to reveal the informant's identity could cause harm to the informant.

[110]        The Respondent says that the difference between the OPP Complaint's Bureau process and the Complaints Commission process under the Act is that under the OPP process the information remains with the police. The Chair of the Complaints Commission, unlike Sergeant Major Sandra McNamara, is not a police officer.

[111]        This distinction will certainly have relevance in the context of the scope of informer privilege, but, in my view, it has no significance at all concerning the issues of relevance and what the Complaints Commission needs to fulfill its obligations under the Act. Different investigative schemes were involved but it is difficult to understand the Respondents position that the OPP Complaints Bureau allowed and required access to the source materials (and the source) to complete its investigative process, while the Complaints Commission process does not because the scope of Complaint and relevancy do not require disclosure as part of that process.

Conflicting Affidavit Evidence

[112]        Under the OPP Complaints Bureau process, Sergeant Major McNamara's statement suggests that she looked at the confidential information and determined that all was well. This is not, in my view, any kind of rationale for withholding the same information from the Complaints Commission.

[113]        The Respondent says that the information was provided to the OPP Complaints Bureau because Sergeant Major McNamara is a police officer. The fact of her being a police officer is, as I have said, no justification for withholding the same information from the Complaints Commission on the grounds of relevance and scope of request. But does the fact that Sergeant Major McNamara has looked at this matter and is "convinced the notes I reviewed are an accurate account of the informant's information and would constitute reasonable and probable grounds to believe the evidence of marijuana would be found both in the complainant's barn and residence" mean that there are no grounds for concern in this case? My view is that, without knowing what Sergeant Major McNamara actually did in her interview with the informant, and the questions she asked and the checks she made, it is difficult to have complete confidence in her conclusions. For example, in the Sworn Information for the search warrant, Constable Scott Delahey says that "Cpl. Kovacs of the RCMP, received information from a Confidential Human Source." In his affidavit in support of this Application dated March 14, 2003, Constable Delahey says "RCMP Constable Ron Kovacs and I received information from an individual in the course of our duties... . The individual who provided this information asked not to be identified and I undertook to keep the individual's identity confidential."

[114]        So even on a superficial reading of Constable Delahey's sworn evidence there is some confusion on this fundamental issue. Did Constable Delahey and Constable Kovacs both deal with the informant, or was it Constable Kovacs who dealt with the confidential source?

Other Ways Around the Problem

[115]        Without revealing the identity of the confidential source, the RCMP could have provided more explanation to the Complainant and the Chair on the issue of why the police decided to obtain a search warrant for the barn and attempted to obtain one for the house.

[116]        To begin with, the RCMP letter of June 19, 2000, to the Complainant says the "investigator noted that you identified no problems with the explanations given to you. Consequently, this file will be concluded without further action on our part."

[117]        In his referral to the Complaints Commission of June 26, 2000, the Complainant says "Mr. Couture suggested that I never identified any problems with the explanations given to me by Mr. Matchett. This is not true, I was 100% unhappy with his explanations."

[118]        Hence, there was fundamental disagreement between the RCMP and the Complainant. The Chair was obliged to investigate this matter and followed up with the RCMP Commissioner. When she did this, as her letter of December 13, 2002, to Commissioner Zaccardelli shows, she made it quite clear what the central problem was: "Specifically, I am not able to determine whether or not the subject member made full, fair and frank disclosure of all relevant facts and circumstances when seeking the search warrant."

[119]        What is particularly revealing is the reason for the denial (contained in the same letter and not refuted by the RCMP):

In the course of our meeting, you confirmed that you would not furnish me with the remainder of the materials relevant to this complaint on the basis that, in your view, I have no jurisdiction to receive and consider those relevant materials when they involve information about confidential sources. You further indicated that I would be effectively reviewing the judge's decision to grant the search warrant; in fact, of course, it is the conduct of the subject member in his dealings with the judge that I must review.

I want to confirm that it is still my position that you are obligated to supply me with all relevant materials relating to Mr. [deleted]'s complaint. At the same time, I want to assure you that I understand, and accept, the need to protect the integrity of law enforcement generally and, in particular, to ensure that the identity of confidential informants is not made public. All relevant materials supplied will be treated in accordance with all necessary and appropriate security measures.

[120]        Relevance and scope of Complaint issues do not appear to have been raised at this stage. The RCMP takes the position that the Chair has no jurisdiction to receive and consider the materials at all because confidential sources are involved and because of the Sealing Order from the Ontario Court.

[121]        I can find nothing on the record to indicate that the RCMP has addressed the central issue of concern: the allegation that the Search Warrant was improperly obtained. The RCMP merely takes the view that, because a confidential source was involved, this matter cannot be reviewed by the Complaints Commission. The RCMP do not say that they have addressed the central matter of concern. They appear to conclude that the involvement of a confidential source not only places this matter beyond the power of the Complaints Commission to investigate, but that it also absolves the RCMP from explaining to the Complaint Commission whether and how the matter has been addressed internally.

The Real Dangers

[122]        As the letter of December 13, 2002, from the Chair of the Complaints Commission to the RCMP Commissioner also makes clear, there has never been any question in this case that providing the requested information to the Complaints Commission could result in the disclosure of the confidential source to anyone other than the Chair of the Complaints Commission. The RCMP does not argue that the information will become public or will fall into the hands of the Complainant, and the Complaints Commission has made it abundantly clear that it never will. This case is not about the disclosure of a confidential source in a situation where the identity of that source will be compromised and the integrity of law enforcement will be undermined. This case is about the RCMP Commissioner's views concerning what information the Complaints Commission should be given following a request under 45.41(2)(b) of the Act.

[123]        In this case, the Respondent says the Complaints Commission should not have the information for various reasons, the principals ones being that the Complaints Commission has no power and jurisdiction to receive it, that it is subject to informer privilege and that the Ontario Sealing Order prevents any such disclosure. There is no argument offered that provision of the information in this case will destroy its confidentiality or make law enforcement more difficult. The Respondent is content to assert that it just doesn't have to provide the information and to challenge the capacity of the Complaints Commission to demand its disclosure in the kind of application that is before the Court.

B.         Grounds For Refusal

1.          Capacity and Jurisdiction

[124]        The Respondent says that the Applicant does not have the capacity to bring this Application and does not have the power to compel the production of evidence (even relevant evidence) nor take an active role in gathering evidence. In fact, the Respondent says that this application is an attempt by the Applicant to extend the powers given to it under Part VII of the Act when, as a matter of legislative policy, it was Parliament's intent that the Complaints Commission would not have the power to initiate legal proceedings.

[125]        The purpose of this application is to compel the RCMP Commissioner to provide relevant material pursuant to ss. 45.41(2)(b) of the Act. That provision reads as follows:

(2) Where a Complainant refers a complaint to the Commission pursuant to subsection (1), ... (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)_: ... 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.

[126]        The Applicant relies upon the mandatory language of 45.41(b) as the basis for this Application, while the Respondent says the Act does not grant the Complaints Commission the power to initiate legal proceedings. In fact, the Respondent says that the Applicant acted without authority when it applied under ss. 487.3(4) of the Criminal Code to obtain a copy of the Sworn Information that was the subject of the Sealing Order issued by the Ontario Court of Justice.

[127]        If the Respondent is correct in this regard it would mean that, under ss. 45.41 of the RCMP Act, the Complaints Commission has no right to compel the RCMP Commissioner to provide either a copy of the complaint or any material relevant to that complaint. Just as a right without a remedy is no right at all, so an obligation without the means to compel it is no obligation at all. It would mean, in effect, that the RCMP Commissioner would have a complete discretion, not only as regards what is and what is not relevant, but also as to whether any material is provided at all under ss. 45.41 even if it is relevant.

[128]        In my opinion, this is an extraordinary argument to make for anyone concerned with the integrity and reputation of the RCMP because its ultimate effect is to deprive the Force of a significant means of vindication in the face of Complaints against its members. If the Complaints Commissioner cannot compel the RCMP Commissioner to provide materials related to a Complaint, and it is all a matter of discretion on the part of the RCMP, then the whole concept of civilian supervision is severely undermined and a Complainant and the public will never know whether a Complaint has been truly investigated. It renders the Complaints Commission a token investigative agency.

[129]        The Respondent appears to think this doesn't matter because the Complaints Commission can institute a public hearing into a Complaint at any time under ss. 45.43 of the Act and has the powers conferred on a board of inquiry pursuant to paras. 24.1(3)(a), (b) and (c) of the Act. This includes the power to summon any person before the Commission to give oral or written evidence on oath and to produce such documents and things under that person's control as the Complaints Commission deems necessary for a full investigation and consideration of the matter.

[130]        In my view, there are many problems associated with this suggested solution. To begin with, a hearing under ss. 45.43 is only to be called where "the Commission Chairman considers it advisable in the public interest ... ." Denial of information and materials under 45.41 of the Act does not mean it is advisable or in the public interest to call a hearing. Hearings under s. 45.43 are rare and most complaints are investigated under s. 45.41. It seems highly inappropriate to suggest that, if the Complaints Commission is not satisfied with the materials furnished by the RCMP Commission under s. 45.41, then it should proceed with a hearing under s. 45.43. Perhaps most objectionable is the notion that the words "shall furnish" under s. 45.41 don't really mean what they say, so that the relatively simple and cost effective way of disposing of complaints under s. 45.41 (and the sheer volume of complaints suggests that, except for something truly exceptional, this will be the most appropriate procedure) doesn't really have any teeth and that, indeed, Parliament didn't intend it to have any teeth. I believe that, if the Respondent's argument is correct in this regard, then the Canadian public may well feel it has been misled concerning the investigative process outlined in Part VII of the Act.

[131]        But the Respondent insists that there is really no argument on this issue because the Federal Court has already ruled on the inappropriateness of the Applicant initiating an application with the Court pursuant to s. 38 of the Canada Evidence Act R.S.C. 1985 c. C-5 to determine the validity of an objection made by the RCMP (pursuant to s. 37 of the same Act) to disclose information that would be injurious to the public interest. The Federal Court of Appeal subsequently confirmed the reasons of the Trial Division on this point and the Respondent says that the same analysis and conclusions apply in this case.

[132]        The case upon which the Respondent relies for this position is Canada Royal Canadian Mounted Police (RCMP), Public Complaints Commission, [1992] F.C.J. No. 502 (F.C.A.) affirming [1990] F.C.J. No. 915 (T.D.) ("Rankin"). In the Rankin case, the Complaints Commission argued that ss. 38(1) of the Canada Evidence Act could be made "on application" and places no restriction on who may bring such an application. Denault J. agreed with this proposition but had to decide whether it was appropriate for the Complaints Commission to bring such an application "considering the mandate conferred upon it by Parliament."

[133]        The Rankin case required the Court to interpret the powers conferred upon the Complaints Commission under ss. 45.45(11) of the Act. Denault J. makes this clear at para. 11 of his judgment:

That section [45.45(11)] allows the Commission to order the hearing to be held in private "if it is of the opinion that during the course of the hearing any of the following information will likely be disclosed" (emphasis added). The plain wording of the section does not give the Commission power to compel the evidence. Rather it is a procedural device to assist the Commission in holding in camera proceedings where in its opinion any information likely to be disclosed would reasonably be expected to be injurious to the defence of Canada or any state allied or associated with Canada or injurious to law enforcement. This section does not give the Commission power to compel this type of evidence. The intent of Parliament was to allow the Commission, in its discretion, to hold the proceedings in camera. The Commission cannot bring this application on the strength of subsection 45.45(11).

[134]        A reading of ss. 45.45(11) confirms the conclusion of Denault J. that the "plain wording of the section does not give the Commission power to compel this type of evidence." In this regard, however, the plain wording of ss. 45.45(11) is very different from the plain wording of ss. 45.41(2) which says that the RCMP Commissioner "shall furnish the Commissioner with a copy of the complaint" and "shall furnish the Commission Chairman with ... such other materials under the control of the Force as are relevant to the Complaint."

[135]        I regard everything said by Denault J. in Rankin as referring to ss. 45.45 of the Act. There is no discussion of ss. 45.41, a very differently worded and constituted provision intended to deal with a very different kind of investigation.

[136]        The Respondent argues that the general dicta found in the Rankin case to the effect that "the Commission has the obligation to be and appear to be impartial as a quasi-judicial body" and that it is "inappropriate that the Commission take the initiative" can be taken out of the context of ss. 45.45 and applied generally to the Act and, in particular, to ss. 45.41(2)(d) which is the subject of this Application. I disagree. Rankin is concerned solely with ss. 45.45 and with the specific wording of that section.

[137]        But the question does have to be asked whether Parliament intended the Complaints Commission to have the capacity and jurisdiction to come before this Court under ss. 45.41(2) of the Act and seek the materials sought in this Application that the RCMP Commissioner has refused to furnish.

[138]        Guided by Rankin, I believe the first thing I have to look at is the "plain wording of the section." To me the plain wording is unequivocal. Parliament's intent was that the RCMP Commission "shall furnish" a copy of the complaint and other materials under the control of the Force relevant to the complaint. This is intended to be mandatory and not discretionary. There is, of course, no specific provision which says that if the RCMP Commission refuses to furnish materials then the Complaints Commission has the right to take legal action to compel compliance with ss. 45.41. So the question becomes, bearing in mind the role of the Complaints Commission in the context of ss. 45.41, was it Parliament's intent that it should be the Complaints Commission who takes action to compel the furnishing of the materials in question?

[139]        The role of the Complaints Commission under ss. 45.41 is significantly different from its role under ss. 45.43 where, in the context of a public hearing process the Complaints Commission's quasi-judicial function comes to the for, and, as the Act indicates, a much more circumspect approach is required. But ss. 45.41 provides a discrete process in the context of a hierarchy of forums to deal with a dissatisfied complainant. Subsection 45.41 is an interim procedure situated between internal investigation by the Force and the full-blown quasi-judicial proceedings of ss. 45.43. It is clear from the Act that Parliament intended the Complaints Commission to take the initiative to determine whether further action is necessary on a particular complaint. Subsection 45.42(1) makes review by the Complaints Commission compulsory: "The Commission Chairman shall review every Complaint referred to the Commission pursuant to ss. 45.41(1) ..." unless there has been a previous investigation or a hearing has been instituted. This process is clearly distinguishable from the "hearing" provisions of the Act and, taken together, ss. 45.41 and ss. 45.42 make it abundantly clear that the Complaints Commission's role in this process is to review how a complaint has been reviewed by the RCMP. The only role of a complainant is to refer the complaint to the Complaints Commission so that it can look at what the RCMP has already done and determine if any further inquiry is necessary. The interaction is then entirely between the Complaints Commission and the RCMP. The mandatory duty imposed upon the Complaints Commission by ss. 45.42 requires a mandatory furnishing of materials under ss. 45.41. The Complaints Commission cannot do its statutory duty unless the RCMP Commissioner does his.

[140]        Bearing in mind the purpose of ss. 45.42, there is nothing inappropriate about the Complaints Commission taking legal action for the limited purpose of securing the materials it needs from the RCMP to do its statutory duty. In my opinion, there is nothing analogous here with the process under ss. 45.43 and the Rankin situation. To hold otherwise would render ss. 45.42 and 45.41 a nullity because the Complaints Commission cannot fulfil a statutory mandate without the power to compel the furnishing of the materials that ss. 45.41 says it is entitled to in order to fulfil that mandate.

[141]        If the Respondent's argument is correct, then the RCMP Commissioner could even refuse to provide a copy of the complaint under ss. 45.41(a) and the Complaints Commission would have no real way of compelling him to do so. I cannot believe that Parliament would specifically provide for a discrete review process (indeed, order it) and, at the same time, leave it to the RCMP Commissioner to decide what, if anything, is disclosed under 45.41. A mandatory obligation requires a corresponding power to seek its fulfilment. Consequently, I am of the view that the Complaints Commission has the capacity and jurisdiction to seek the assistance of this Court for the limited purpose of ensuring compliance with ss. 45.42 and 45.41 of the Act.

2.          Remedial Requirements

[142]        The Respondent next seeks to resist furnishing the materials requested on the grounds that the Applicant cannot satisfy the legal grounds for this Court to issue mandamus and declaratory relief.

[143]        The Respondent raises the usual objections in this regard and lays particular emphasis on the lack of a public legal duty owed to the Applicant to provide the information, and the availability of an adequate alternative remedy under the hearing provisions of the Act.

[144]        I believe I have already said enough in relation to the previous ground of objection to indicate the basis upon which I disagree with the Respondent on this issue.

[145]        I believe the Act does create such a public legal duty on the Respondent to provide the materials referred to in ss. 45.41. I have also indicated that I do not regard the hearing process made available under other provisions of the Act as any kind of remedy for the discrete review process that is constituted by ss. 45.42 and 45.41.

[146]        In this case, the information has been requested and the RCMP Commissioner has refused to provide it in a context where he has a public duty to provide that information to the Complaints Commission.

[147]        I am convinced that, on the facts before me, the Applicant has satisfied the grounds for mandamus and a declaration. I agree with the Respondent that ss. 45.41(2)(b) of the Act refers to "relevant" materials under the control of the Force and that there may be disagreement concerning relevance.

[148]        But I disagree with the Respondent that the Complainant does not take issue with the grounds upon which the search warrant was issued. Subsection 45.42 obliges the Complaints Commission to review "every Complaint" referred under 45.41(1). The Complaint in this case is constituted by the Complainant's letter received February 17, 2000, which specifically asks "why did the police get a search warrant for my barn in the first place?" The materials requested by the Complaints Commission are directly relevant to this issue.

3. Police Informer's Privilege

[149]        The Respondent also seeks to resist disclosure of the requested information by invoking police informer's privilege. The Respondent has provided an extremely helpful discussion of the scope of the privilege and the jurisprudence that defines it. That jurisprudence does not require elaboration here because the Applicant does not disagree with it. The only disagreement between the parties is whether the Chair's request in this case is caught by the privilege and the RCMP Commissioner is legally obliged to resist furnishing the materials because of that privilege. The Applicant says that the jurisprudence defining and asserting police informer's privilege does not address the situation envisaged by ss. 45.41 of the Act and the underlying policy objectives behind the privilege are not undermined in any way by allowing the Chair of the Complaints Commission access to the information.

[150]        Before turning to the central issue, it is worth repeating that the Respondent has not really questioned the ability and the obligation of the Complaints Commission to ensure that the identity of the informant is protected if the information is disclosed to the Chair. Nor, it seems to me, is there any issue that the ability of the police, relying upon confidential information to do their job, will be threatened in any way if the Chair receives the materials requested. The Respondent's argument is merely that the privilege forbids the disclosure of the requested materials.

[151]        It is also worth bearing in mind that the information contained in the materials has already been disclosed to a significant number of people including police officers, judges, a court registrar and certain lawyers but, most significantly, to Sergeant Major Sandra McNamara in her capacity as Complaint Investigator - Professional Standard Bureau under the OPP Complaints Bureau system.

[152]        Sergeant Major McNamara says that she interviewed the subject officers and reviewed their notes and that she has even interviewed the confidential informant. So under the OPP Complaints Bureau process the information concerning the informant was considered relevant, necessary and not excluded by police informer privilege. Yet, under the ss. 45.42 and 45.41 of the RCMP Act the Respondent takes the position that such information is not relevant and cannot be disclosed because of informer privilege, even though the same Complaint is being reviewed.

[153]        The Respondent asserts that this difference in treatment over informer privilege is justified by the fact that Sergeant Major McNamara is a police officer. This may be the case but, in reviewing this Complaint and in interviewing the informant she was acting in her capacity as "Complaint Investigator" in the context of a complaints investigation scheme. The Respondent asserts in his written materials that "the Supreme Court of Canada has decided that it is always contrary to the public interest to require disclosure of information from a peace officer that may reveal the identity of a police informer, and that this aspect of the public interest always takes precedence over the need to do more complete justice," and that the "privilege is subject to only one exception namely, criminal prosecutions where disclosure of an informer's identity is necessary to demonstrate the innocence of the accused." One wonders, then, why the identity of the informant in this case was so readily provided to a complaints investigator acting under the OPP Complaints Bureau system in a situation where there is no accused.

[154]        As the Respondent points out, however, the fact that disclosures have taken place in this case (even if they were disclosures in breach of the privilege) does not affect the privilege itself, which cannot be waived. I agree with the Respondent in this regard and I believe that the only issue before me on this ground is whether the law of police informer privilege does prevent disclosure of the materials in this case, a disclosure that will obviously reveal the informer's identity and what the informer said to the Chair of the Complaints Commission. On the one hand, I do not believe that the wording of ss. 45.41 suspends or abrogates police informer privilege in this context. On the other hand, if the Respondent is correct, then the Complaints Commission will never be able to adequately investigate a Complaint such as the one in this case where a police informer was involved and the appropriateness of the RCMP's handling of the warrant and search situation obviously involves an inquiry into the actual information provided by the informant and an assessment of whether sufficient care was taken to ensure that it constituted reasurable grounds and/or was not malevolently motivated. Hence, this is an extremely important issue for the future conduct of the Applicant and the Respondent.

[155]        The Respondent has referred the Court to several cases that explore the scope of, and assert, the historical and continuing importance of police informer privilege. However, for purposes of the application before me, a comprehensive summary of the law as articulated by the Supreme Court of Canada can be found in R. v. Leipert (1997), 112 C.C.C. (3d) 385. The fundamentals of the privilege as contained in the majority judgment are succinctly summarized in the head note as follows:

Informer privilege is of fundamental importance to the workings of a criminal justice system. Informer privilege is of such importance that it cannot be balanced against other interests. Once established, neither the police nor the court possesses discretion to abridge it. The privilege belongs to the Crown. However, the Crown cannot, without the informer's consent, waive the privilege either expressly or by implication by not raising it. In that sense, it also belongs to the informer. This follows from the purpose of the privilege, being the protection of those who provide information to the police and the encouragement of others to do the same. The fact that the privilege also belongs to the informer raises special concerns in the case of anonymous informants. Since the informer whom the privilege is designed to protect and his or her circumstances are unknown, it is often difficult to predict with certainty what information might allow the accused to identify the informer. In such circumstances, courts must exercise great care not to unwittingly deprive informers of the privilege which the law accords to them. Subject only to the "innocence at stake" exception, the Crown and the court are bound not to reveal the undisclosed informant's identity. Informer privilege prevents not only disclosure of the name of the informant, but of any information which might implicitly reveal his or her identity. As the identity of the informer in this case was unknown, the Crown was not in a position to determine whether any part of the information could reveal his or her identity. This led the Crown to claim privilege for all the information provided by the informer. The extension of privilege to all information that could identify an informant justified this claim in the case of an anonymous informant. Where the evidence establishes a basis for the "innocence at stake" exception to informer privilege, the privilege must yield to the principle that a person is not to be condemned when his or her innocence can be proved.

[156]        On the facts of the case at bar, the Applicant is prepared to concede that there is a confidential informant who has provided information to the RCMP that is subject to the privilege. Also, there is no accused and the "innocence at stake" exception does not arise. In addition, I can find no evidence that the informant has consented to disclosure, or even that the informant's consent has been sought.

[157]        The Applicant argues that since police officers, judges and Crown attorneys routinely share information that is subject to the privilege, we have to conclude that the courts are content with this sharing because it does not undermine the public policy upon which the privilege is founded. When such parties gain access to the information, the informer is not placed at risk and there is no inhibition in respect of the delivery of information to the police by the public.

[158]        In fact, the Applicant argues that the courts have given no express guidance on the standards to be applied where such information is shared and invites the Court to provide such guidance in the context of ss. 45.42(1) of the Act, which is not a public proceeding, and bearing in mind that the sharing of the information in this case with the Chair of the Complaints Commission would not undermine the policy upon which the privilege is founded.

[159]        The Applicant's suggestions appear eminently reasonable to me. However, I believe that I am bound to apply the law on informer privilege as it exists, and my review of the relevant authorities (summarized in Leipert, supra) suggest to me that the law is clear. The fact that the information in this case may have been shared with others (or that others routinely share such information) is not, in my view, relevant to the central issue of whether s. 45.42(1) of the Act creates an exception to informer privilege of which the Chair of the Complaints Commission can partake.

[160]        The Supreme Court of Canada in Leipert, supra, has said, at paragraph 14, that "informer privilege is of such importance that it cannot be balanced against other interests. Once established, neither the police nor the court possesses discretion to abridge it." The only recognized exception is the "innocence at stake" exception that does not arise in this case. I believe, therefore, I am bound by authority to apply the law in its adamantine form. To consider the Applicants arguments (however reasonable) means that I would have to embark upon a weighing of competing interests and the law, as I read it, is quite clear that this cannot be done. I do not have the discretion to abridge the privilege in favour of the Applicant.

[161]        I agree with the Applicant that the assertion of informer privilege in this case, and in other cases like it, will seriously impede the ability of the Complaints Commission to review complaints in accordance with s. 45.42 of the Act. But all that means is that the public interest in the civilian oversight of Complaints against the RCMP comes face to face with the interests embodied in the privilege. And the law says that, when informer privilege is at issue, and provided the "innocence at stake" exception does not arise, I cannot engage in a weighing of interests and have no discretion. I must apply the privilege. The remedy to the difficulties that this causes the Complaints Commission cannot be supplied by this Court and must come from Parliament.

[162]        In my view, this conclusion is dispositive of the application before me. However, in case I should be wrong on this issue and the matter comes to appeal, the Respondent raises one further ground to resist disclosure that should be considered.

4.          Release is Prohibited by Court Order

[163]        The Sealing Order issued by the Ontario Court of Justice pursuant to s. 487.3 of the Criminal Code states as follows:

I do hereby order and direct that this packet including its contents is to be kept in the custody of the court in the office of the clerk thereof in a safe, secure and private place to which the public has no access, so as to ensure the privacy and confidentiality of the contents and the packet is not to be delivered to or opened by any person except upon the order of a subsequent judicial officer.

[164]        The Respondent points out that the parties do not dispute that the packet referred to in the Sealing Order contains the Sworn Information. The Respondent also says that, by necessary implication, the Prohibition of the Sealing Order also extends to the Officers' Notes, which contain information used to prepare the Sworn Information and takes the position that, whatever the merits of the Applicant's claim, neither ss. 45.41(2)(b), nor any other provision of the Act, requires the Respondent to breach a court imposed obligation to keep confidential documents and information protected by police informer's privilege.

[165]        I agree with the Respondent that information protected by police informers privilege cannot be disclosed, but the Sealing Order, per se, and ss. 487.3(4) of the Criminal Code make it clear that the Order can be varied by subsequent court order. In the event that the information was not protected by informer privilege, I see nothing to prevent such an order issuing as part of this application.

Conclusion

[166]        The Court is of the view that this Application fails on one ground alone. The Applicant has conceded that, on the facts of this case, there is a confidential informant who has provided information to the RCMP that is subject to police informer privilege. Hence the Court's conclusion that s. 45.42(1) of the Act does not create an exception to informer privilege of which the Chair of the Complaints Commission can partake means that the requested orders for mandamus and declaration should not issue.

ORDER

THIS COURT ORDERS THAT:

1.          The Application is dismissed.

2.          The Respondent shall have costs of this application.

"James Russell"

____________________________________

JFC

                        FEDERAL COURT OF CANADA

             Names of Counsel and Solicitors of Record

DOCKET:                  T-25-03

STYLE OF CAUSE: ROYAL CANADIAN MOUNTED POLICE

PUBLIC COMPLAINTS COMMISSION

                                                                                              Applicant

- and -

ATTORNEY GENERAL OF CANADA

                                                                                          Respondent

PLACE OF HEARING:                                 OTTAWA, ONTARIO

DATE OF HEARING:                                   FEBRUARY 25, 2004

REASONS FOR ORDER

AND ORDER BY:    RUSSELL J.

DATED:                     JUNE 9, 2004              

APPEARANCES BY:                                     Mr. Steven C. McDonell

                                                                        For the Applicant

Mr. Patrick Bendin

For the Respondent

SOLICITORS OF RECORD:                       Mr. Steven C. McDonell

Royal Canadian Mounted Police Public

Complaints Commission

PO Box 3423, Station D

Ottawa, ON K1P 6L4

For the Applicant

Attorney General of Canada

Department of Justice

284 Wellington Street, 2^nd floor

East Memorial Building

Ottawa, ON K1A 0H8

For the Respondent

FEDERAL COURT OF CANADA

       Date: 20040609

                                            Docket: T-25-03

BETWEEN:

ROYAL CANADIAN MOUNTED POLICE

PUBLIC COMPLAINTS COMMISSION

                                                                                          Applicant

- and -

ATTORNEY GENERAL OF CANADA

                                                                                     Respondent

                                                 

REASONS FOR ORDER

AND ORDER