Bill C-42

60-61-62 ELIZABETH II

——————

CHAPTER 18

An Act to amend the Royal Canadian Mounted Police Act and to make related and consequential amendments to other Acts

[Assented to 19th June, 2013]

Whereas Canadians should have confidence in their national police force;

Whereas civilian review is vital to promoting transparency and public accountability of law enforcement;

Whereas civilian review should enhance the accountability of the Royal Canadian Mounted Police to provincial governments that have entered into arrangements for the use or employment of the Royal Canadian Mounted Police;

Whereas all members of the Royal Canadian Mounted Police are responsible for the promotion and maintenance of good conduct and are guided by a Code of Conduct that reflects the expectations and values of Canadians;

And whereas the Government of Canada is committed to the provision of a framework that will serve to enhance the accountability of the Royal Canadian Mounted Police and support its continued modernization;

Now, therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

SHORT TITLE

1. This Act may be cited as the Enhancing Royal Canadian Mounted Police Accountability Act.

PART 1

ROYAL CANADIAN MOUNTED POLICE ACT

Amendments to the Act

2. (1) The definition “appropriate officer” in subsection 2(1) of the Royal Canadian Mounted Police Act is repealed.

(2) The definitions “Commission Chairman” and “Committee Chairman” in subsection 2(1) of the English version of the Act are repealed.

(3) The definition “Commission” in subsection 2(1) of the Act is replaced by the following:

“Commission” means the Civilian Review and Complaints Commission for the Royal Canadian Mounted Police established by subsection 45.29(1);

(4) The definitions “member”, “officer” and “representative” in subsection 2(1) of the Act are replaced by the following:

“member” means any person who has been appointed under section 5 or subsection 6(3) or (4) or 7(1) and who is employed with the Force;

“officer” means a member appointed under section 5 or subsection 6(3) or (4);

“representative” means a person who is representing or assisting a member or a conduct authority under section 47.1.

(5) Subsection 2(1) of the Act is amended by adding the following in alphabetical order:

“conduct authority”, in respect of a member, means a person designated under subsection (3) in respect of the member;

(6) Subsection 2(1) of the Act is amended by adding the following in alphabetical order:

“proceedings”, in relation to the Commission, means any investigation or hearing conducted by the Commission with respect to a complaint made under Part VII;

(7) Subsection 2(3) of the Act is replaced by the following:

(3) The Commissioner may designate any person to be a conduct authority in respect of a member either for the purposes of this Act generally or for the purposes of any particular provision of this Act.

3. (1) Subsection 5(1) of the Act is replaced by the following:

5. (1) The Governor in Council may appoint an officer, to be known as the Commissioner of the Royal Canadian Mounted Police, to hold office during pleasure, who, under the direction of the Minister, has the control and management of the Force and all matters connected with the Force.

(2) Subsection 5(2) of the Act is replaced by the following:

(2) The Commissioner may delegate to any member, subject to any terms and conditions that the Commissioner directs, any of the Commissioner’s powers, duties or functions under this Act, except the power to delegate under this subsection, the power to make rules under this Act and the powers, duties or functions under subsections 45.46(1) and (2).

(3) Subsection 5(2) of the Act is replaced by the following:

(2) The Commissioner may delegate to any member any of the Commissioner’s powers, duties or functions under this Act, except the power to delegate under this subsection, the power to make rules under this Act and the powers, duties or functions under section 32 (in relation to any type of grievance prescribed under subsection 33(4)), subsections 42(4) and 43(1), section 45.16, subsection 45.19(5), section 45.26 and subsections 45.4(5) and 45.41(10).

4. The heading before section 6 of the Act is replaced by the following:

Officers and Members

5. Subsection 6(3) of the Act is replaced by the following:

(3) The Governor in Council may appoint any person to the rank of Deputy Commissioner to hold office during pleasure.

(4) The Commissioner may appoint any person to any other rank of officer and, by way of promotion, appoint an officer to a higher rank, other than to the rank of Deputy Commissioner.

(5) The Governor in Council may authorize the issue of a commission under the Great Seal to an officer on the officer’s first appointment to the rank of an officer or on the recommendation of the Commissioner.

6. The heading before section 7 of the Act is repealed.

7. The Act is amended by adding the following before section 7:

6.1 (1) The Governor in Council may, in respect of each Division of the Force, on the recommendation of the Minister, designate an officer to be the Division’s Commanding Officer to hold office during pleasure.

(2) The Minister’s recommendation is to be made on the recommendation of the Commissioner.

(3) In the event of the absence or incapacity of a Commanding Officer or if a position of Commanding Officer is vacant, the Commissioner may authorize another officer to act as the Commanding Officer, but no officer may act as the Commanding Officer for more than 180 days without the Governor in Council’s approval.

(4) An officer who holds office as a Commanding Officer ceases to hold that office if the officer ceases to be an officer but nothing in this subsection precludes the termination of the officer’s designation for any other reason.

8. (1) Subsection 7(1) of the Act is replaced by the following:

7. (1) The Commissioner may appoint members of the Force other than officers and, by way of promotion, appoint a member other than an officer to a higher rank, other than to the rank of Deputy Commissioner, or to a higher level, for which there is a vacancy.

(2) Subsection 7(1) of the Act is replaced by the following:

7. (1) The Commissioner may

(a) appoint members of the Force other than officers;

(b) by way of promotion appoint a member other than an officer to a higher rank for which there is a vacancy in the establishment of the Force;

(c) where the Commissioner is requested by any department of the Government of Canada or considers it necessary or in the public interest, appoint for a period not exceeding twelve months at any one time special constables supernumerary to the strength of the Force for the purpose of maintaining law and order; and

(d) designate any member, any supernumerary special constable appointed under this subsection or any temporary employee employed under subsection 10(2) as a peace officer.

(3) Subsection 7(2) of the Act is replaced by the following:

(2) The ranks of members other than officers and the maximum numbers of persons that may be appointed to each rank shall be as prescribed by the Treasury Board.

(4) Subsections 7(3) to (5) of the Act are repealed.

9. Sections 8 and 9 of the Act are replaced by the following:

8. (1) The term of a member’s appointment under subsection 6(4) or 7(1) is indeterminate unless the Commissioner specifies that it is for a fixed period.

(2) A member whose appointment is for a fixed period ceases to be a member at the expiry of that period or of any extension made under subsection (3).

(3) The Commissioner may extend the period of the term of a member whose appointment is for a fixed period. The extension does not constitute an appointment under subsection 6(4) or 7(1).

10. The Act is amended by adding the following after section 9.1:

Revocation

9.2 The Commissioner’s power to appoint a person as a member or to appoint a member, by way of promotion, to a higher rank or level, includes the power to revoke the appointment and to take corrective action whenever the Commissioner is satisfied that an error, an omission or improper conduct affected the selection of the person or member for appointment.

Probation

9.3 (1) A person appointed as a member is on probation for a period established by rules of the Commissioner.

(2) A member’s probationary period is not terminated by any appointment, demotion or transfer from one position to another during that period.

9.4 (1) While a member is on probation, the Commissioner may discharge the member by notifying the member that the member will be discharged at the end of the notice period established by rules of the Commissioner. The member ceases to be a member at the end of that notice period.

(2) Instead of giving the notice referred to in subsection (1), the Commissioner may notify the member that the member is discharged on the date specified by the Commissioner and that the member will be paid an amount equal to the salary the member would have been paid during the notice period referred to in subsection (1). The member ceases to be a member at that specified date.

Resignation

9.5 A member may resign from the Force by giving the Commissioner notice in writing of their intention to resign, and the member ceases to be a member on the date specified by the Commissioner in writing on accepting the resignation.

Supernumerary Special Constables

9.6 (1) The Commissioner may, on the request of any department as defined in section 2 of the Financial Administration Act or if he or she considers it necessary or in the public interest, appoint, for periods of not more than 12 months, special constables supernumerary to the strength of the Force for the purpose of maintaining law and order.

(2) The Commissioner may at any time revoke the appointment of any supernumerary special constable.

(3) Supernumerary special constables are not entitled to any pecuniary privileges or benefits under this Act.

11. Sections 10 to 12.1 of the Act are replaced by the following:

10. The civilian employees that are necessary for carrying out the functions and duties of the Force shall be appointed or employed under the Public Service Employment Act.

Reserve

11. (1) The Governor in Council may make regulations providing for the establishment of a Royal Canadian Mounted Police Reserve, for the appointment of persons as reservists and for defining their powers, duties and functions.

(2) Except as provided by the regulations made under subsection (1), this Act does not apply to reservists.

(3) Despite subsection 3(3) of the Royal Canadian Mounted Police Superannuation Act, for the purposes of that Act, the Public Service Superannuation Act and the Canadian Forces Superannuation Act, a reservist is not deemed to be employed in the public service, as defined in subsection 3(1) of the Royal Cana- dian Mounted Police Superannuation Act.

Peace Officers

11.1 (1) Every officer is a peace officer in every part of Canada and has all the powers, authority, protection and privileges that a peace officer has by law until the officer ceases to be an officer.

(2) The Commissioner may designate any member, other than an officer, any supernumerary special constable appointed under subsection 9.6(1), any person appointed as a reservist under the regulations and any other person who is under the Commissioner’s jurisdiction as a peace officer.

(3) Every person designated under subsection (2) has the same powers, authority, protection and privileges as officers under subsection (1) until the person’s designation expires or is revoked or the designated person ceases to be a member, supernumerary special constable or reservist, or a person under the Commissioner’s jurisdiction, as the case may be.

Certificates

11.2 (1) The Commissioner may issue

(a) a certificate to any member stating that the person to whom it is issued is a member of the Force and, if that person is also a peace officer, that the person is a peace officer; and

(b) a certificate to any other person under the Commissioner’s jurisdiction stating that the person to whom it is issued is a peace officer, if that person has been designated as such under subsection 11.1(2).

(2) Any document purporting to be a certif-icate referred to in subsection (1) is evidence in all courts and in all proceedings of the facts stated in it.

Suspension

12. Every member who has contravened, is found contravening or is suspected of contravening any provision of the Code of Conduct or of an Act of Parliament, or of the legislature of a province, may be suspended from duty by the Commissioner.

12. The Act is amended by adding the following after section 20:

Human Resource Management

20.1 In addition to its powers under section 11.1 of the Financial Administration Act, the Treasury Board may determine categories of members in the exercise of its human resources management responsibilities under paragraph 7(1)(e) of that Act.

13. Section 20.1 of the Act is replaced by the following:

20.1 In addition to its powers under section 11.1 of the Financial Administration Act, the Treasury Board may, in the exercise of its human resources management responsibilities under paragraph 7(1)(e) of that Act,

(a) determine categories of members; and

(b) establish policies or issue directives respecting the exercise of the powers granted to the Commissioner by paragraphs 20.2(1)(h) and (i) and the reporting by the Commissioner in respect of the exercise of those powers.

20.2 (1) The Commissioner may

(a) determine the learning, training and development requirements of members and fix the terms on which the learning, training and development may be carried out;

(b) provide for the awards to be made to members for outstanding performance of their duties, for other meritorious achievement in relation to their duties or for inventions or practical suggestions for improvements;

(c) require a member to undergo a medical examination or an assessment by a qualified person specified by the Commissioner for the purpose of establishing the member’s ability to perform their duties or to participate in conduct related proceedings, other than a hearing initiated under subsection 41(1);

(d) recommend the discharge of any Deputy Commissioner whose performance, in the opinion of the Commissioner, is unsatisfactory;

(e) discharge or demote any member, other than a Deputy Commissioner, whose per-formance, in the Commissioner’s opinion, is unsatisfactory;

(f) recommend the discharge of any Deputy Commissioner for reasons other than a contravention of any provision of the Code of Conduct;

(g) discharge or demote any member, other than a Deputy Commissioner, for reasons other than a contravention of any provision of the Code of Conduct;

(h) recommend the discharge of any Deputy Commissioner to whom an offer of employment is made as the result of the transfer of any work, undertaking or business from the Force to any other entity;

(i) discharge any member, other than a Deputy Commissioner, to whom an offer of employment is made as the result of the transfer of any work, undertaking or business from the Force to any other entity;

(j) recommend the discharge of any Deputy Commissioner for the promotion of economy and efficiency in the Force;

(k) discharge any member, other than a Deputy Commissioner, for the promotion of economy and efficiency in the Force; and

(l) establish procedures to investigate and resolve disputes relating to alleged harassment by a member.

(2) The recommendation for discharge under paragraph (1)(d) or (f), and the discharge or demotion under paragraph (1)(e) or (g), of a member may only be for cause.

(3) Despite subsection 5(2), the Commissioner may delegate to any person under the Commissioner’s jurisdiction, subject to any terms and conditions that the Commissioner directs, any of the Commissioner’s powers under subsection (1).

(4) Any person to whom powers are delegated under subsection (3) may, subject to and in accordance with the delegation, sub-delegate any of those powers to any other person under the Commissioner’s jurisdiction.

14. (1) Paragraphs 21(1)(a) and (b) of the Act are replaced by the following:

(a) respecting the exercise of the Commissioner’s powers under any of paragraphs 20.2(1)(a) to (g) and (j) to (l);

(b) for the organization, conduct, perform-ance of duties, discipline, efficiency, administration or good government of the Force;

(b.1) respecting the qualifications of persons who are not under the Commissioner’s jurisdiction who may be designated under subsection 2(3) and the circumstances under which they may be designated;

(b.2) respecting the appointment of persons to conduct boards established under section 43 and the qualification of the persons who may be appointed;

(b.3) respecting the period during which records relating to investigations and proceedings under Part IV are to be retained;

(b.4) respecting the service of documents required or authorized to be served under this Act including the manner and proof of service and the circumstances under which documents are to be considered to be served; and

(2) Subsection 21(2) of the Act is replaced by the following:

(2) Subject to the provisions of this Act and the regulations, the Commissioner may make rules

(a) prescribing a probationary period for the purposes of subsection 9.3(1);

(b) respecting the decision to discharge a member under section 9.4 and the making of a complaint procedure in relation to the decision;

(c) prescribing a notice period for the purposes of subsection 9.4(1);

(d) respecting the Commissioner’s authority under subsection 22(2) to direct the stoppage of pay and allowances of members;

(e) respecting the application of any of paragraphs 20.2(1)(a), (b), (c) and (l);

(f) respecting the making of a decision to recommend the discharge of a Deputy Commissioner under any of paragraphs 20.2(1)(d), (f) and (j);

(g) respecting the making of a decision to discharge or demote a member under any of paragraphs 20.2(1)(e), (g) and (k);

(h) defining “standardized test” for the purposes of subsection 31(4.1);

(i) respecting the performance by members of their duties;

(j) establishing basic requirements for the carrying on of a member’s duties as a member;

(k) respecting the conduct of members;

(l) respecting the designation of persons to be conduct authorities; and

(m) respecting the organization, efficiency or administration or good government of the Force.

15. (1) Subsection 22(1.1) of the Act is replaced by the following:

(1.1) If a member is demoted under this Act, the member’s rate of pay shall be reduced to the highest rate of pay for the rank to which the member is demoted that does not exceed the member’s rate of pay at the time of the demotion.

(2) Subsections 22(2) and (3) of the Act are replaced by the following:

(2) The Commissioner may direct that a member’s pay and allowances be stopped if

(a) the Commissioner is of the opinion that the member

(i) is unable to perform their duties as the result of the loss of a basic requirement, as set out in the rules, for the carrying out of a member’s duties,

(ii) is absent from duty without authorization, or

(iii) has left any assigned duty without authorization;

(b) the Commissioner has suspended the member from duty under section 12; or

(c) the member is a Deputy Commissioner who is the subject of a recommendation made under paragraph 20.2(1)(d), (f), (h) or (j).

(3) For the purpose of paragraph (2)(a), being absent from duty without authorization includes being detained in custody or serving a period of imprisonment.

16. (1) Section 24.1 of the Act is amended by adding the following after subsection (1):

(1.1) For greater certainty, the power to appoint under subsection (1) includes the power to appoint all or any of the members of the Commission.

(2) Paragraph 24.1(6)(b) of the Act is replaced by the following:

(b) any answer or statement made in response to a question described in subsection 35(8), 40(2), 45.1(11), 45.22(8) or 45.65(2);

(3) Paragraph 24.1(6)(b) of the Act is replaced by the following:

(b) any answer or statement made in response to a question described in subsection 35(8), 40(2), 45.1(5) or 45.45(9);

(4) Paragraph 24.1(6)(d) of the Act is replaced by the following:

(d) any answer or statement made in the course of attempting to informally dispose of or resolve a complaint made under Part VII.

(5) Subsection 24.1(8) of the Act is replaced by the following:

(8) If the witness is a member, no answer or statement made in response to a question described in subsection (7) shall be used or receivable against the witness under any proceeding under Part IV, other than a proceeding regarding an allegation that with intent to mislead the witness gave the answer or statement knowing it to be false.

17. The Act is amended by adding the following after section 28:

28.1 The Committee shall establish, and make public, service standards respecting the time limits within which it is to deal with grievances and appeal cases that are referred to it and specifying the circumstances under which those time limits do not apply or the circumstances under which they may be extended.

18. The portion of section 29 of the Act before paragraph (a) is replaced by the following:

29. Subject to the provisions of this Act and the regulations, the Committee may make rules respecting

19. Section 30 of the Act is renumbered as subsection 30(1) and is amended by adding the following:

(2) The report must contain information respecting the Committee’s performance in relation to the service standards established under section 28.1.

20. The Act is amended by adding the following after the heading of Part III:

Interpretation

30.1 Every reference in this Part to a member includes a former member for the purposes of any provision respecting a grievance in relation to a discharge from the Force.

Conflict Management

30.2 Subject to any policies established or directives issued by the Treasury Board, the Commissioner shall establish an informal conflict management system and inform the members of its availability.

21. (1) Subsection 31(1) of the Act is replaced by the following:

31. (1) Subject to subsections (1.1) to (3), if a member is aggrieved by a decision, act or omission in the administration of the affairs of the Force in respect of which no other process for redress is provided by this Act, the regulations or the Commissioner’s standing orders, the member is entitled to present the grievance in writing at each of the levels, up to and including the final level, in the grievance process provided for by this Part.

(1.1) A member is not entitled to present a grievance in respect of which an administrative procedure for redress is provided under any other Act of Parliament, other than one provided for in the Canadian Human Rights Act.

(1.2) Despite subsection (1.1), a member is not entitled to present a grievance in respect of the right to equal pay for work of equal value.

(1.3) A member is not entitled to present a grievance relating to any action taken under any instruction, direction or regulation given or made by or on behalf of the Government of Canada in the interest of the safety or security of Canada or any state allied or associated with Canada.

(1.4) For the purposes of subsection (1.3), an order made by the Governor in Council is conclusive proof of the matters stated in the order in relation to the giving or making of an instruction, direction or regulation by or on behalf of the Government of Canada in the interest of the safety or security of Canada or any state allied or associated with Canada.

(2) Subsection 31(4) of the Act is replaced by the following:

(4) Subject to subsection (4.1) and any limitations specified under paragraph 36(b), a member presenting a grievance shall be granted access to any written or documentary information under the Force’s control and relevant to the grievance that the member reasonably requires to properly present it.

(4.1) A member is not entitled to have access to a standardized test used by the Force, or to information concerning such a test, if in the opinion of the Commissioner, its disclosure would affect its validity or continued use or would affect the results of such a test by giving an unfair advantage to any person.

(4.2) In this section, “standardized test” has the meaning assigned by rules established by the Commissioner.

(3) Subsection 31(6) of the Act is replaced by the following:

(6) As soon as feasible after the presentation and consideration of a grievance at any level in the grievance process, the person constituting the level shall render a decision in writing as to the disposition of the grievance, including reasons for the decision, and serve the member presenting the grievance and, if the grievance has been referred to the Committee under section 33, the Committee Chairperson with a copy of the decision.

22. (1) Subsection 32(1) of the Act is replaced by the following:

32. (1) The Commissioner constitutes the final level in the grievance process and the Commissioner’s decision in respect of any grievance is final and binding.

(2) Section 32 of the Act is amended by adding the following after subsection (3):

(4) The Commissioner may delegate to any person under the Commissioner’s jurisdiction any of the Commissioner’s powers, duties or functions under this section or section 33.

(5) A person to whom any powers, duties or functions are delegated under subsection (4) may not sub-delegate any of them.

23. (1) Subsection 35(9) of the Act is replaced by the following:

(9) If the witness is a member, no answer or statement made in response to a question described in subsection (8) shall be used or receivable against the witness under any proceeding under Part IV, other than a proceeding regarding an allegation that with intent to mislead the witness gave the answer or statement knowing it to be false.

(2) Subsection 35(14) of the Act is replaced by the following:

(14) In this section, “parties” means

(a) in respect of each type of grievance that is referred to the Committee under section 33, the person designated by the Commissioner for the purposes of this section and the member whose grievance has been referred to the Committee under section 33;

(b) in respect of a case of an appeal made under subsection 45.11(1) that is referred to the Committee under subsection 45.15(1), the member who is the subject of the decision of the conduct board and the conduct authority that initiated the hearing by that conduct board; and

(c) in respect of a case of an appeal made under subsection 45.11(3) that is referred to the Committee under subsection 45.15(1), the member making the appeal and the conduct authority who made the finding under appeal or who imposed the conduct measure under appeal.

24. Section 36 of the Act is replaced by the following:

Rules

36. Subject to the provisions of this Act and the regulations, the Commissioner may make rules governing the presentation and consideration of grievances under this Part, including rules

(a) prescribing persons under the Commissioner’s jurisdiction or classes of such persons to constitute the levels in the grievance process; and

(b) specifying, for the purpose of subsection 31(4), limitations, in the interests of security or the protection of privacy of persons, on the right of a member presenting a grievance to be granted access to information relating to the grievance.

25. The Act is amended by adding the following after section 36:

Recommendation for Deputy Commissioner’s Discharge

36.1 If the Commissioner recommends under paragraph 20.2(1)(d), (f), (h) or (j) that a Deputy Commissioner is to be discharged from the Force, the recommendation is not to be forwarded to the Governor in Council until the expiry of the time within which a grievance may be presented under this Part. If a grievance is presented, the recommendation is to be forwarded only if the grievance is denied at the final level.

26. The headings before section 37 of the Act are replaced by the following:

PART IV

CONDUCT

Purposes of Part

36.2 The purposes of this Part are

(a) to establish the responsibilities of members;

(b) to provide for the establishment of a Code of Conduct that emphasizes the importance of maintaining the public trust and reinforces the high standard of conduct expected of members;

(c) to ensure that members are responsible and accountable for the promotion and maintenance of good conduct in the Force;

(d) to establish a framework for dealing with contraventions of provisions of the Code of Conduct, in a fair and consistent manner, at the most appropriate level of the Force; and

(e) to provide, in relation to the contravention of any provision of the Code of Conduct, for the imposition of conduct measures that are proportionate to the nature and circumstances of the contravention and, where appropriate, that are educative and remedial rather than punitive.

Responsibilities

27. The portion of section 37 of the Act before paragraph (a) is replaced by the following:

37. It is the responsibility of every member

28. The portion of subsection 39(1) of the Act before paragraph (a) is replaced by the following:

39. (1) Every member who is alleged to have contravened a provision of the Code of Conduct may be dealt with under this Act either in or outside Canada,

29. Sections 40 to 45.14 of the Act are replaced by the following:

39.1 The Commissioner shall make rules

(a) establishing the conduct measures, other than dismissal or recommendation for dismissal, that may be taken in respect of contraventions of provisions of the Code of Conduct and specifying which of those conduct measures may be imposed by any class of conduct authorities; and

(b) governing appeals under this Part, including rules

(i) prescribing the time within which an appeal may be made and providing for extensions of that time, and

(ii) respecting the practice and procedure for the appeals.

39.2 The Commissioner may make rules

(a) respecting the investigation of contraventions of provisions of the Code of Conduct; and

(b) respecting the exercise of the conduct authorities’ powers under subsection 42(1).

40. (1) If it appears to a conduct authority in respect of a member that the member has contravened a provision of the Code of Conduct, the conduct authority shall make or cause to be made any investigation that the conduct authority considers necessary to enable the conduct authority to determine whether the member has contravened or is contravening the provision.

(2) In any investigation under subsection (1), no member shall be excused from answering any question relating to the matter being investigated when required to do so by the person conducting the investigation on the grounds that the answer to the question may tend to criminate the member or subject the member to any criminal, civil or administrative action or proceeding.

(3) No answer or statement made in response to a question described in subsection (2) shall be used or receivable in any criminal, civil or administrative action or proceeding, other than a proceeding under this Part regarding an allegation that with intent to mislead the member gave the answer or statement knowing it to be false.

40.1 The following definitions apply in sections 40.2 to 40.8.

“document” means any medium on which is recorded or marked anything that is capable of being read or understood by an individual or a computer system or other device.

“justice” has the meaning assigned by section 2 of the Criminal Code.

“night” has the meaning assigned by section 2 of the Criminal Code.

“person” has the meaning assigned by section 2 of the Criminal Code.

40.2 (1) On ex parte application that has been approved by an officer designated by the Commissioner for the purposes of this section, a justice may issue a warrant if the justice is satisfied by information on oath that there are reasonable grounds to believe that there is in any receptacle or place not under the control of the Force anything that will afford evidence with respect to the contravention of a provision of the Code of Conduct.

(2) The application must indicate whether or not the place is a dwelling-house.

(3) The warrant may authorize a peace officer, and any other individual named in the warrant, to enter and search the place and to seize anything specified in the warrant, subject to any conditions specified in the warrant.

(4) A warrant may be issued under this section by telephone or other means of telecommunication on application submitted by a peace officer by one of those means and section 487.1 of the Criminal Code applies for that purpose with any modifications that the circumstances require.

(5) A warrant issued under this section shall be executed by day, unless

(a) the justice is satisfied that there are reasonable grounds for it to be executed by night;

(b) the reasonable grounds are included in the information; and

(c) the warrant authorizes that it be executed by night.

(6) A person authorized under this section to search a computer system in a place for data may

(a) use or cause to be used any computer system at the place to search any data contained in or available to the computer system;

(b) reproduce or cause to be reproduced any data in the form of a print-out or other intelligible output;

(c) seize the print-out or other output for examination or copying; and

(d) use or cause to be used any copying equipment at the place to make copies of the data.

(7) A person who seizes a thing under this section shall give a receipt to the person from whom the thing was seized and shall as soon as feasible, make a report of the seizure to a justice.

(8) If a report of the seizure is made to the justice, the justice shall,

(a) if the lawful owner or person who is lawfully entitled to possession of the thing seized is known, order it to be returned to that owner or person, unless the person having custody of the thing seized satisfies the justice that the detention of the thing seized is required for the purposes of any proceeding under this Part; or

(b) if the person having custody of the thing seized satisfies the justice that the thing seized should be detained, order that it be detained in the Force’s care until the conclusion of the proceedings.

(9) On application by the person from whom a thing was seized and on three clear days notice to the Commissioner, a justice may make an order for the release of the thing to the person if the justice is satisfied that the thing is no longer necessary for the purposes of the investigation or any proceeding under this Part arising from the investigation.

(10) A thing seized under this section may be stored in the place where it was seized or it may, at the discretion of a peace officer, be removed to any other place for storage.

40.3 (1) On ex parte application, a justice may order a person to produce to a peace officer named in the order a document that is a copy of a document that is in their possession or control when they receive the order, or to prepare and produce a document that contains data that is in their possession or control at that time.

(2) Before making the order, the justice must be satisfied by information on oath that there are reasonable grounds to believe that the document will afford evidence with respect to the contravention of a provision of the Code of Conduct.

(3) An order shall not be made under subsection (1) requiring a member who is under investigation for an alleged contravention of a provision of the Code of Conduct to produce a document or to prepare and produce a document that relates to that alleged contravention.

40.4 (1) An order made under subsection 40.3(1) may contain any conditions that the justice considers appropriate including conditions to protect a privileged communication between a person who is qualified to give legal advice and their client.

(2) The order has effect throughout Canada.

(3) On ex parte application made by a peace officer, the justice who made the order may, on the basis of an information on oath, revoke or vary the order. The peace officer shall give notice of the revocation or variation to the person who is subject to the order as soon as feasible.

40.5 An order made under subsection 40.3(1) shall require a person to produce the document to a peace officer named in the order within the time, at the place and in the form specified in the order.

40.6 Every copy of a document produced under subsection 40.3(1) is admissible in evidence in proceedings under this Part on proof by affidavit that it is a true copy and has the same probative force as the document would have if it were proved in the ordinary way.

40.7 (1) A person named in an order made under subsection 40.3(1) may, before the order expires, apply in writing to the justice who issued the order, or to any other justice, for an exemption from the requirement to produce or to prepare and produce any document.

(2) A person may only make the application if they give notice of their intention to do so to the peace officer named in the order to whom the document is to be produced within 15 days after the day on which the order is made.

(3) The execution of the order is suspended until a final decision is made in respect of the application.

(4) The justice may grant the exemption if the justice is satisfied that

(a) the document, data or information would disclose information that is privileged or otherwise protected from disclosure by law;

(b) it is unreasonable to require the applicant to produce the document, data or information; or

(c) the document, data or information is not in the possession or control of the applicant.

40.8 No one is excused from complying with an order made under subsection 40.3(1) on the grounds that the document that they are required to produce may tend to criminate them or subject them to any criminal, civil or administrative action or proceeding. However, a document that an individual is required to prepare shall not be used or received in evidence against them in a criminal proceeding that is subsequently instituted against them, other than a prosecution for an offence under section 132, 136 or 137 of the Criminal Code.

41. (1) If it appears to a conduct authority in respect of a member that the member has contravened a provision of the Code of Conduct and the conduct authority is of the opinion that the conduct measures provided for in the rules are insufficient, having regard to the gravity of the contravention and to the surrounding circumstances, the conduct authority shall initiate a hearing into the alleged contravention by notifying the officer designated by the Commissioner for the purpose of this section of the alleged contravention.

(2) A hearing shall not be initiated by a conduct authority in respect of an alleged contravention of a provision of the Code of Conduct by a member after the expiry of one year from the time the contravention and the identity of that member as the one who is alleged to have committed the contravention became known to the conduct authority that investigated the contravention or caused it to be investigated.

42. (1) If a conduct authority in respect of a member is satisfied, on a balance of probabilities, that the member has contravened a provision of the Code of Conduct and the conduct authority is of the opinion that the conduct measures provided for in the rules are sufficient, having regard to the grav- ity of the contravention and to the surrounding circumstances, the conduct authority may impose any one or more of those conduct measures against the member.

(2) Conduct measures shall not be imposed under subsection (1) in respect of the contravention after the expiry of one year from the time the contravention and the identity of that member became known to the conduct authority that investigated the contravention or caused it to be investigated.

Conduct Boards

43. (1) On being notified under subsection 41(1) of an alleged contravention of a provision of the Code of Conduct by a member, the officer designated for the purpose of that subsection shall, subject to the regulations, appoint one or more persons as members of a conduct board to decide whether the member contravened the provision.

(2) As soon as feasible after making the appointment or appointments, the conduct authority who initiated the hearing shall serve the member with a notice in writing informing the member that a conduct board is to determine whether the member contravened a provision of the Code of Conduct.

(3) The notice may allege more than one contravention of any provision of the Code of Conduct and is to contain

(a) a separate statement of each alleged contravention;

(b) a statement of the particulars of the act or omission constituting each alleged contravention;

(c) the names of the members of the conduct board; and

(d) a statement of the member’s right to object to the appointment of any person as a member of the conduct board as provided in section 44.

(4) The statement of particulars contained in the notice is to contain sufficient details, including, if practicable, the place and date of each contravention alleged in the notice, to enable the member who is served with the notice to identify each contravention in order that the member may prepare a response and direct it to the occasion and events indicated in the notice.

44. (1) Within seven days after the day on which a member is served with a notice under subsection 43(2), the member may object in writing to the designated officer referred to in subsection 43(1) to the appointment of any person as a member of the conduct board, and the designated officer shall, on receiving the objection, decide whether to reject the objection or to allow the objection and appoint another person as a member of the board.

(2) The objection must contain reasons for the objection.

(3) After the designated officer makes a decision under subsection (1) with respect to an objection, the designated officer shall serve the member making the objection with a notice in writing setting out the decision and the reasons for it, and, if the objection is allowed, the designated officer shall

(a) appoint another person as a new member of the conduct board; and

(b) set out in the notice

(i) the name of the other person, and

(ii) a statement of the member’s right to object to the appointment of the other person as provided in this section.

(4) The provisions of this section apply, with any modifications that the circumstances require, with respect to the appointment of a person under subsection (3) as though the notice setting out the name of the person were a notice referred to in subsection (1).

45. (1) The role of the conduct board is to decide whether or not each allegation of a contravention of a provision of the Code of Conduct contained in the notice served under subsection 43(2) is established on a balance of probabilities.

(2) A conduct board has, in relation to the case before it, the powers conferred on a board of inquiry, in relation to the matter before it, by paragraphs 24.1(3)(a) to (c).

(3) The conduct board’s decision must be recorded in writing and include a statement of the conduct board’s findings on questions of fact material to the decision, reasons for the decision and a statement of the conduct measure, if any, imposed under subsection (4).

(4) If a conduct board decides that an allegation of a contravention of a provision of the Code of Conduct by a member is established, the conduct board shall impose any one or more of the following conduct measures on the member, namely,

(a) recommendation for dismissal from the Force, if the member is a Deputy Commissioner, or dismissal from the Force, if the member is not a Deputy Commissioner,

(b) direction to resign from the Force and, in default of resigning within 14 days after being directed to do so, recommendation for dismissal from the Force, if the member is a Deputy Commissioner, or dismissal from the Force, if the member is not a Deputy Commissioner, or

(c) one or more of the conduct measures provided for in the rules.

Hearing

45.1 (1) The parties to a hearing initiated under subsection 41(1) are the conduct authority who initiated it and the member whose conduct is the subject of the hearing.

(2) The hearing shall be held in public but the conduct board, on its own initiative or at the request of any party, may order that the hearing or any part of it is to be held in camera if it is of the opinion

(a) that information, the disclosure of which could reasonably be expected to be injurious to the defence of Canada or any state allied or associated with Canada or to the detection, prevention or suppression of subversive or hostile activities, will likely be disclosed during the course of the hearing;

(b) that information, the disclosure of which could reasonably be expected to be injurious to law enforcement, will likely be disclosed during the course of the hearing;

(c) that information respecting a person’s financial or personal affairs, if that person’s interest or security outweighs the public’s interest in the information, will likely be disclosed during the course of the hearing; or

(d) that it is otherwise required by the circumstances of the case.

(3) The conduct board shall permit any person who gives evidence at the hearing to be represented by legal counsel or a representative.

(4) Despite subsection 45(2), but subject to subsection (5), the conduct board is not authorized to receive or accept any evidence or other information that would be inadmissible in a court of law by reason of any privilege under the law of evidence.

(5) In the hearing, no witness shall be excused from answering any question relating to the case before the conduct board when required to do so by the conduct board on the grounds that the answer to the question may tend to criminate the witness or subject the witness to any criminal, civil or administrative action or proceeding.

(6) If the witness is a member, no answer or statement made in response to a question described in subsection (5) shall be used or receivable against the witness under any proceeding under Part IV regarding an allegation of a contravention of a provision of the Code of Conduct by the witness, other than a proceeding regarding an allegation that with intent to mislead the witness gave the answer or statement knowing it to be false.

(7) The conduct board may, on its own initiative or at the request of any person, make an order directing that any of the following information shall not be published in any document or broadcast or transmitted in any way:

(a) information that could identify a complainant, a witness or a person under the age of 18; and

(b) information disclosed during any part of the hearing held in camera.

(8) The conduct board may conduct the hearing in the absence of the member whose conduct is the subject of the hearing in the circumstances set out in the rules.

(9) If the member whose conduct is the subject of the hearing indicates that they are unable to attend the hearing for medical reasons, the conduct board may direct the member to undergo a medical examination or an assessment by a qualified person specified by the conduct board to determine if the member is unable to participate in the hearing for medical reasons. If the member fails to undergo the medical examination or assessment, the conduct board may conduct the hearing in the absence of the member.

Appeal

45.11 (1) A member who is the subject of a conduct board’s decision or the conduct authority who initiated the hearing by the conduct board that made the decision may, within the time provided for in the rules, appeal the decision to the Commissioner in respect of

(a) any finding that an allegation of a contravention of a provision of the Code of Conduct by the member is established or not established; or

(b) any conduct measure imposed in consequence of a finding referred to in paragraph (a).

(2) Every reference in subsection (1) to a member includes a former member for the purposes of any appeal with respect to a dismissal from the Force.

(3) A member who is the subject of a conduct authority’s decision may, within the time provided for in the rules, appeal the decision to the Commissioner in respect of

(a) any finding that an allegation of a contravention of a provision of the Code of Conduct by the member is established; or

(b) any conduct measure imposed in consequence of a finding that an allegation referred to in paragraph (a) is established.

(4) An appeal lies to the Commissioner on any ground of appeal.

30. (1) Subsections 45.15(1) and (2) of the Act are replaced by the following:

45.15 (1) If an appeal relates to any of the following conduct measures, or to any finding that resulted in its imposition, the Commissioner, before considering the appeal, shall refer the case to the Committee:

(a) a financial penalty of more than one day of the member’s pay;

(b) a demotion;

(c) a direction to resign;

(d) a recommendation for dismissal; or

(e) a dismissal.

(2) Subsection 45.15(4) of the Act is repealed.

31. Sections 45.16 and 45.17 of the Act are replaced by the following:

45.16 (1) The Commissioner may dispose of an appeal in respect of a conduct board’s finding by

(a) dismissing the appeal and confirming the finding being appealed; or

(b) allowing the appeal and either ordering a new hearing into the allegation giving rise to the finding or making the finding that, in the Commissioner’s opinion, the conduct board should have made.

(2) The Commissioner may dispose of an appeal in respect of a conduct authority’s finding by

(a) dismissing the appeal and confirming the finding being appealed; or

(b) allowing the appeal and making the finding that, in the Commissioner’s opinion, the conduct authority should have made.

(3) The Commissioner may dispose of an appeal in respect of a conduct measure imposed by a conduct board or a conduct authority by

(a) dismissing the appeal and confirming the conduct measure; or

(b) allowing the appeal and either rescinding the conduct measure or, subject to subsection (4) or (5), imposing another conduct measure.

(4) If the appeal is in respect of a conduct measure imposed by a conduct authority, the Commissioner may only impose under paragraph (3)(b) a conduct measure that is provided for in the rules.

(5) If the appeal is in respect of a conduct measure imposed by a conduct board, the Commissioner may impose any conduct meas- ure under paragraph (3)(b) that the conduct board could have imposed, including the power to recommend dismissal from the Force, if the member is a Deputy Commissioner, or dismissal from the Force, if the member is not a Deputy Commissioner.

(6) If the Commissioner orders a new hearing into an allegation under subsection (1), a conduct board shall be appointed in accordance with this Part to conduct the hearing and the new hearing shall be held in accordance with this Part as if it were the first hearing into that allegation.

(7) The Commissioner shall as soon as feasible render a decision in writing on an appeal, including reasons for the decision.

(8) If a case has been referred to the Committee under section 45.15, the Commissioner shall take into consideration the findings or recommendations set out in the report of the Committee or the Committee Chairperson in respect of the case, but the Commissioner is not bound to act on any findings or recommendations set out in the report. However, if the Commissioner does not so act, the Commissioner shall include in the decision on the appeal the reasons for not so acting.

(9) A Commissioner’s decision on an appeal is final and binding.

(10) Despite subsection (9), the Commissioner may rescind or amend the Commissioner’s decision on an appeal under section 45.11 on the presentation to the Commissioner of new facts or if, with respect to the finding of any fact or the interpretation of any law, the Commissioner determines that an error was made in reaching the decision.

(11) The Commissioner may delegate any of the Commissioner’s powers, duties or functions under this section to any person under the Commissioner’s jurisdiction.

(12) A person to whom powers, duties or functions are delegated under subsection (11) may not sub-delegate any of them.

45.17 If a conduct board recommends under paragraph 45(4)(a) that a Deputy Commissioner is to be dismissed from the Force, the recommendation is not to be forwarded to the Governor in Council until the expiry of the time within which an appeal may be made under subsection 45.11(1). If an appeal is made, the recommendation is to be forwarded only if the appeal is dismissed.

32. The Act is amended by adding the following after section 45.17:

Notice

45.171 If an individual makes a complaint under subsection 45.53(1) in respect of any conduct by a member that is also an alleged contravention of a provision of the Code of Conduct, the individual and the Commission are to be notified, as soon as feasible after a final decision is made under this Part in respect of the alleged contravention or the time for appealing any decision under this Part has expired, of the decision and what informal disciplinary actions, if any, have been taken or what sanctions, if any, have been imposed against the member.

45.172 If representations have been received by the Force from a person who was given an opportunity to do so under subsection 45.57(1) in respect of an alleged contravention of a provision of the Code of Conduct by a member, the person is to be notified, as soon as feasible after a final decision is made under this Part in respect of the alleged contravention or the time for appealing any decision under this Part has expired, of the decision and of what informal disciplinary actions, if any have been taken, or what sanctions if any, have been imposed against the member.

45.173 If the Chairperson of the Commission initiates a complaint under subsection 45.59(1) in respect of any conduct by a member that is also an alleged contravention of a provision of the Code of Conduct, the Chairperson of the Commission is to be notified, as soon as feasible after a final decision is made under this Part in respect of the alleged contravention or the time for appealing any decision under this Part has expired, of the decision and what informal disciplinary actions, if any have been taken, or what sanctions if any, have been imposed against the member.

33. Part V of the Act is repealed.

34. (1) Subsection 45.45(7) of the Act is replaced by the following:

(7) In addition to the rights conferred by subsections (5) and (6), the officer designated by the Commissioner for the purposes of this Part may be represented or assisted at a hearing by any other member.

(2) Paragraph 45.45(8)(b) of the Act is replaced by the following:

(b) any answer or statement made in response to a question described in subsection 24.1(7), 35(8), 40(2) or 45.1(5);

(3) Subsection 45.45(15) of the Act is replaced by the following:

(15) In this section and section 45.46, “parties” means the officer designated by the Commissioner for the purposes of this Part, the member or other person whose conduct is the subject matter of a complaint and, in the case of a complaint under subsection 45.35(1), the complainant.

35. Parts VI and VII of the Act are replaced by the following:

PART VI

CIVILIAN REVIEW AND COMPLAINTS COMMISSION FOR THE ROYAL CANADIAN MOUNTED POLICE

Establishment and Organization

45.29 (1) The Civilian Review and Complaints Commission for the Royal Canadian Mounted Police is established, consisting of a Chairperson and not more than four other members, one of whom may be a Vice-chairperson, appointed by the Governor in Council.

(2) A person is not eligible to be a member of the Commission if that person

(a) is a member or former member; or

(b) is not a Canadian citizen or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act.

(3) The Governor in Council shall, before appointing a person as a member of the Commission, consider the need for regional representation in the membership of the Commission.

(4) A member of the Commission is eligible for reappointment on the expiry of that member’s term of office.

45.3 (1) The Chairperson is a full-time member of the Commission. The other members may be appointed as full-time or part-time members of the Commission.

(2) Each member of the Commission holds office during good behaviour for a term of not more than five years but may be removed for cause at any time by the Governor in Council.

(3) Members of the Commission are to be paid the remuneration that is to be determined by the Governor in Council.

(4) Members of the Commission are entitled to be reimbursed, in accordance with Treasury Board directives, for the travel, living and other expenses incurred in connection with their work for the Commission while absent, in the case of full-time members, from their ordinary place of work or, in the case of part-time members, from their ordinary place of residence.

(5) The full-time members of the Commission are deemed to be employed in the public service for the purposes of the Public Service Superannuation Act.

(6) Members of the Commission are deemed to be employed in the federal public administration for the purposes of the Government Employees Compensation Act and any regulations made under section 9 of the Aeronautics Act.

45.31 (1) The Chairperson is the chief executive officer of the Commission and has supervision over and direction of the work and staff of the Commission.

(2) The Chairperson may delegate to the Vice-chairperson or, if the office of Vice-chairperson is vacant, to any other member of the Commission any of the Chairperson’s powers, duties and functions under this Act, except the power to delegate under this subsection and the powers, duties and functions under subsections 45.4(5), 45.41(10), 45.47(2) and 45.85(3).

(3) In the event of the absence or incapacity of the Chairperson or if the office of Chairperson is vacant, the Vice-chairperson has all the powers, duties and functions of the Chairperson. In the event of the absence or incapacity of the Vice-chairperson or if the office of Vice-chairperson is vacant, the Minister may authorize another member of the Commission to exercise the powers and perform the duties and functions of the Chairperson, but a member of the Commission so authorized is not entitled to act as Chairperson for more than 90 days without the approval of the Governor in Council.

45.32 (1) The head office of the Commission shall be in Ottawa.

(2) The Commission may establish an office in any region of Canada.

(3) The officers and employees that are necessary for the proper conduct of the work of the Commission shall be appointed in accordance with the Public Service Employment Act.

(4) The Commission may, with the approval of the Treasury Board,

(a) engage, on a temporary basis, the serv-ices of persons having technical or special-ized knowledge of any matter relating to the work of the Commission to advise and assist the Commission in the exercise or perform- ance of its powers, duties and functions under this Act; and

(b) fix and pay the remuneration and expenses of persons engaged under paragraph (a).

Powers, Duties and Functions

45.33 The Commission shall exercise or perform the powers, duties and functions that are assigned to it by this Act.

45.34 (1) For the purpose of ensuring that the activities of the Force are carried out in accordance with this Act or the Witness Protection Program Act, any regulations or ministerial directions made under them or any policy, procedure or guideline relating to the operation of the Force, the Commission may, on the request of the Minister or on its own initiative, conduct a review of specified activities of the Force and provide a report to the Minister and the Commissioner on the review.

(2) In order to conduct a review on its own initiative, the Commission shall be satisfied that

(a) sufficient resources exist for conducting the review and the handling of complaints under Part VII will not be compromised; and

(b) no other review or inquiry has been undertaken on substantially the same issue by a federal or provincial entity.

(3) Before conducting a review on its own initiative, the Commission shall give a notice to the Minister indicating that the Commission is satisfied that the conditions referred to in subsection (2) have been met and setting out the rationale for conducting the review.

(4) The Commission shall include in the report any findings and recommendations that it sees fit regarding the adequacy, appropriateness, sufficiency or clarity of any policy, procedure or guideline relating to the operation of the Force.

(5) The Commission may provide a copy of the report to the provincial minister who has the primary responsibility for policing in any province in respect of which there is an arrangement between the government of the province and the Minister under section 20.

45.35 (1) If there is an arrangement between the government of a province and the Minister under section 20, the provincial minister who has the primary responsibility for policing in that province may ask the Minister to request that the Commission conduct a review of specified activities of the Force in that province.

(2) If the Commission conducts a review under this section, it shall provide the Minister, the provincial minister who asked for the review and the Commissioner with a report on the review. The Commission may provide a copy of the report to any other provincial minister who has the primary responsibility for policing in a province.

(3) The Commission shall include in its report any findings and recommendations that the Commission sees fit regarding

(a) whether the activities of the Force are carried out in accordance with this Act or the Witness Protection Program Act, any regulations or ministerial directions made under them or any policy, procedure or guideline relating to the operation of the Force; and

(b) the adequacy, appropriateness, sufficiency or clarity of any policy, procedure or guideline relating to the operation of the Force.

45.36 (1) The Commission has, when conducting a review under section 45.34 or 45.35, all of the powers of the Commission under paragraphs 45.65(1)(a) to (d).

(2) Subsections 45.65(2) to (6) apply, with any necessary modifications, to the exercise of the powers by the Commission under subsection (1).

45.37 The Commission shall establish, and make public, service standards respecting the time limits within which it is to deal with complaints and specifying the circumstances under which those time limits do not apply or the circumstances under which they may be extended.

45.38 The Commission may implement public education and information programs to make its mandate better known to the public and may conduct research and consult and cooperate with any person or entity, in or outside Canada, in matters relating to its mandate.

Information Provisions

45.39 (1) Subject to sections 45.4 and 45.42, the Commission is entitled to have access to any information under the control, or in the possession, of the Force that the Commission considers is relevant to the exercise of its powers, or the performance of its duties and functions, under Parts VI and VII.

(2) The entitlement to access includes the right to examine all or any part of a record and to be given a copy of all or any part of a record.

(3) If the Commissioner is of the opinion that the disclosure of any information referred to in subsection (1), other than privileged information as defined in subsection 45.4(1), to any person or entity, other than a member, officer or employee of the Commission or a person acting on its behalf, gives rise to a risk of serious harm to a person, the Commissioner shall identify the information to the Commission when providing the Commission with access to the information.

(4) Except as provided by any other Act of Parliament that expressly refers to this section, this section applies despite any other Act of Parliament.

45.4 (1) In this section and sections 45.41 to 45.48, “privileged information” means information that is subject to any type of privilege that exists and may be claimed, including

(a) information that is protected by the privilege that exists between legal counsel and their client or that is subject to informer privilege;

(b) information that reveals or from which may be inferred the location or a change of identity of a protectee within the meaning of section 2 of the Witness Protection Program Act or a former protectee;

(c) information that compromises the integrity of the program established under section 4 of the Witness Protection Program Act, including certain information about the means or methods used in that program and information about the identity and role of a person who provides or, directly or indirectly, assists in providing protection under that program;

(d) special operational information as defined in subsection 8(1) of the Security of Information Act;

(e) information or intelligence that is similar in nature to information or intelligence referred to in any of paragraphs (a) to (f) of the definition “special operational information” in subsection 8(1) of the Security of Information Act and that is in relation to, or is received from, any police force or Interpol or other similar international police organization; and

(f) medical information about a member or other person appointed or employed under the authority of Part I.

(2) Despite any privilege that exists and may be claimed, the Commission is entitled to have access to privileged information under the control, or in the possession, of the Force if that information is relevant and necessary to the matter before the Commission when it is conducting a review under section 45.34 or 45.35 or is conducting an investigation, review or hearing under Part VII.

(3) The entitlement to access includes the right to examine all or any part of a record and, subject to the Commissioner’s approval, to be given a copy of all or any part of a record.

(4) If the Commissioner refuses access to privileged information sought by the Commission under this section, the Commissioner shall, without disclosing the privileged information,

(a) indicate to the Commission why the privileged information is not relevant or necessary to the matter before the Commission; and

(b) provide the Commission with information about the nature and date of the privileged information.

(5) The Chairperson and the Commissioner may enter into a memorandum of understanding setting out principles and procedures respecting access to privileged information under this section and principles and procedures to protect that information.

(6) The Governor in Council may make regulations respecting procedures that govern the Commission’s access to privileged information under this section and procedures to protect that information.

(7) Except as provided by any other Act of Parliament that expressly refers to this section, this section, or any regulation made under subsection (6), applies despite any other Act of Parliament.

45.41 (1) If the Commissioner refuses access to privileged information sought by the Commission under subsection 45.4(2), the Minister shall, at the request of the Commission, appoint a former judge of a superior court of a province or the Federal Court or an individual who is a member of a prescribed category of individuals to review the information and make observations to the Commission and the Commissioner. In order to be appointed, the former judge or other individual shall obtain a security clearance from the Government of Canada and shall take the oath of secrecy referred to in paragraph 45.45(1)(a).

(2) The Minister shall provide notice to the Chairperson and the Commissioner when a former judge or other individual has been appointed in accordance with subsection (1). The Chairperson and the Commissioner shall make their representations to the former judge or other individual within 30 days after the day on which the notice is sent or within any longer period, not exceeding 60 days, that the former judge or other individual may permit.

(3) The former judge or other individual shall have access to privileged information for the purposes of the review.

(4) The former judge or other individual shall review the privileged information and provide his or her observations to the Chairperson and the Commissioner

(a) regarding the privileged nature of the information; and

(b) regarding the relevance and necessity of the information to the matter before the Commission.

(5) The former judge or other individual shall not include information that reveals privileged information or from which it may be inferred in the observations provided under subsection (4).

(6) The former judge or other individual shall, before making any observations, consider the following factors:

(a) the reasons for which the Commission is seeking access to the information;

(b) the Commissioner’s reasons for refusing access to the information; and

(c) whether the Commission can properly exercise its powers or perform its duties and functions without access to the information.

(7) The observations of the former judge or other individual shall be made within 30 days after the day on which the period referred to in subsection (2) expires or within any longer period, not exceeding 60 days, that the Minister permits.

(8) The observations of the former judge or other individual are confidential and shall not be disclosed by the judge or other individual, the Commission or the Force, except to the Minister.

(9) Section 45.5 applies to the former judge or other individual as if he or she were a member of the Commission.

(10) After receiving the observations of the former judge or other individual, the Chairperson shall review the Commission’s decision to seek access and the Commissioner shall review his or her decision to refuse access, taking those observations into account.

(11) An application for judicial review shall not be made in connection with the Commission’s decision to seek access to privileged information, or the Commissioner’s refusal to allow access to privileged information, until the former judge or other individual has made his or her observations.

(12) The Governor in Council may, by regulation, prescribe categories of individuals for the purposes of subsection (1).

45.42 (1) Despite section 45.4, the Commission shall not have access to information under the control, or in the possession, of the Force if the information reveals

(a) information relating to a request made by a member or other person appointed or employed under the authority of Part I for legal assistance or indemnification from Her Majesty in right of Canada;

(b) communications referred to in subsection 47.1(2);

(c) information that is protected by the privilege that exists between legal counsel and their client and that relates to the provision of advice to a member or other person appointed or employed under the authority of Part I when the privilege may be claimed by the member or other person and not the Force;

(d) information that is protected by the privilege that exists between legal counsel and their client when the privilege may be claimed by the Force and that relates to the Force’s dealings with the Commission, including

(i) legal opinions relating to the way in which the Force should conduct itself in regard to the Commission, and

(ii) minutes of meetings held by the Force relating to the way in which the Force should conduct itself in regard to the Commission; and

(e) any report prepared for the Commissioner in respect of a meeting held or to be held between the Commission and the Force and containing analysis or advice relating to the meeting.

(2) Nothing in this Part authorizes a person to disclose to the Commission a confidence of the Queen’s Privy Council for Canada in respect of which subsection 39(1) of the Canada Evidence Act applies, and the Commission may not use the confidence if it is disclosed.

45.43 If the Commission obtains access to privileged information in respect of a matter under subsection 45.4(2), the Commission may use that information only in respect of that matter.

45.44 (1) The Commission may, by regulation, establish measures to protect the information under its control or in its possession.

(2) Subject to subsection 45.47(2), if the Commission obtains access to information referred to in subsection 45.39(3) or to privileged information from the Force, no member, officer or employee of the Commission and no other person acting on its behalf shall distribute any report or other document that contains or discloses the information or any part of it without having first obtained the approval of the Commissioner.

(3) The Commissioner shall indicate whether he or she approves the distribution of a report or other document under subsection (2) as soon as feasible after being consulted under that subsection.

(4) The Governor in Council may make regulations respecting measures to protect the information under the control, or in the possession, of the Commission.

(5) In the event of a conflict or inconsistency between the regulations made under subsections (1) and (4), the regulations made under subsection (4) prevail to the extent of the conflict or inconsistency.

(6) Subject to subsection (5), every member, employee and officer of the Commission and every person acting on its behalf shall comply with the regulations made under subsections (1) and (4).

45.45 (1) Every member, employee and officer of the Commission and every other person acting on its behalf and every former judge or other individual appointed under subsection 45.41(1) shall

(a) obtain and maintain the necessary securi-ty clearance from the Government of Canada and take the oath of secrecy prescribed by regulation;

(b) comply with all security requirements under this Part and the Security of Information Act; and

(c) follow established procedures or practices, including any requirement found in a Treasury Board policy, guideline or directive, for the secure handling, storage, transportation and transmission of information or documents.

(2) The Governor in Council may, by regulation, prescribe the oath of secrecy referred to in paragraph (1)(a).

45.46 (1) The Commission shall not disclose information referred to in subsection 45.39(3) that it has received from the Force to any person or entity other than a member, employee or officer of the Commission or a person acting on its behalf unless the Commissioner advises the Commission that he or she is satisfied that

(a) the person or entity will take reasonable measures to protect that information;

(b) the person or entity will require all of its members, employees, officers and other persons acting on its behalf to meet requirements that are equivalent to the requirements referred to in section 45.45; and

(c) the person or entity has agreed to any measures that would assist the Force to verify compliance with the obligations described in paragraphs (a) and (b), which may include agreeing to permit the Force to enter and inspect the premises of the person or entity and any information storage facilities and to provide any information or documents requested by the Force.

(2) When the Commission indicates to the Commissioner that it wishes to disclose information referred to in subsection 45.39(3) to a person or entity other than a member, employee or officer of the Commission or a person acting on its behalf, the Commissioner shall, as soon as feasible, indicate to the Commission whether he or she is satisfied that the person or entity has met the requirements of paragraphs (1)(a) and (b) and has agreed to the measures referred to in paragraph (1)(c).

(3) The Governor in Council may make regulations respecting the disclosure by the Commission of information referred to in subsection 45.39(3) to persons or entities other than a member, employee or officer of the Commission or a person acting on its behalf and the measures that the persons or entities receiving the information are to take to protect the information.

(4) Every person who has received information under this section shall comply with the regulations made under subsection (3).

45.47 (1) Except as authorized under subsection (2), no member, officer or employee of the Commission or other person acting on its behalf shall provide information to any person, or allow any person to have access to information, knowing that the information is privileged information to which he or she had access under subsection 45.4(2) or being reckless as to whether the information is such privileged information.

(2) Every person who is otherwise prohibited from disclosing privileged information under subsection (1) may, if authorized by the Chairperson, disclose that information

(a) to the Attorney General of Canada or of a province if, in the opinion of the Chairperson, the information relates to the commission of an offence under federal or provincial law by a director, an officer or an employee of a government institution and there is evidence of such an offence and the information is required in criminal proceedings, either by indictment or on summary conviction, that have been commenced by the laying of an information or the preferring of an indictment, under an Act of Parliament;

(b) to the Minister other than in an annual report referred to in section 45.52;

(c) to the Commissioner if, in the opinion of the Chairperson, the information is required for the purpose of enabling the Commissioner to exercise his or her powers or perform his or her duties and functions under this Act; and

(d) to a former judge or other individual for the purposes of section 45.41.

(3) A member, officer or employee of the Commission or other person acting on its behalf shall not be required, in connection with any criminal, civil or administrative action or proceeding, to give or produce evidence relating to privileged information to which he or she had access under subsection 45.4(2).

(4) Except as provided by any other Act of Parliament that expressly refers to it, this section applies despite any other Act of Parliament other than the Access to Information Act and the Privacy Act.

(5) This section applies despite subsection 13(1) of the Auditor General Act and subsection 79.3(1) of the Parliament of Canada Act.

45.48 A former judge or other individual appointed under subsection 45.41(1) shall not provide information to any person, or allow any person to have access to information, knowing that the information is privileged information to which he or she had access under subsection 45.41(3) or being reckless as to whether the information is such privileged information.