Law Times

Law Times • January 25, 2010 NEWS PAGE 3 Reforms unfulfilled as watchdog leaves post Parade of departures prompts concerns over independence of federal agencies BY TIM SHUFELT Law Times dogs, lawyer Paul Kennedy says his hopes of handing off a reformed system of civilian oversight of our national police force remains unfulfilled. But that result may not be A due to a lack of effort but rather because of it. Late last year, the federal government chose not to renew Kennedy's contract as chairman of the Commission for Public Complaints Against the RCMP, a move that prompted widespread speculation that his outspoken criticism of the force and calls for legislative reform had led to his departure. But even with limited powers at his disposal to investigate com- plaints, Kennedy tells Law Times that after leaving the post after five years, he feels he managed to build the commission into a cred- ible investigative body. "I wanted to show it could be done under current powers with imagination and effort." Kennedy and his team cleared a large backlog of RCMP com- plaints and reduced timelines for resolutions, for example. As well, whereas the police force investigated about half of all complaints when Kennedy started the job, the commission now handles about 80 per cent of them, he says. Still, Kennedy worries about happens now. "Then I what would have very serious issues with the commitment of the fed- eral government to have effective oversight of the RCMP," he says, adding he nevertheless remains hopeful the government will in- troduce a new legislative regime. "I haven't seen anything that shows they're moving. But I'm an optimist." Kennedy stops short of saying mid growing concerns about the indepen- dence of federal watch- his tenure ended for political rea- sons. "I think it's not the quality of the work that was the deciding factor," he says instead. The comments come as Ken- nedy and some fellow ousted federal watchdogs get set to gather on Parliament Hill this week for a panel examining the relationship between the government and independent agencies like the RCMP public complaints commission. Liberal Leader Michael Igna- tieff assembled the governance panel, which includes Linda Keen, former head of the Cana- dian Nuclear Safety Commis- sion, and former Military Police Complaints Commission chair- man Peter Tinsley. Keen lost her job after she publicly clashed with the federal government over safety at the Chalk River nuclear reactor. As well, the government de- cided not to renew Tinsley's term after he pushed for access to documents over the handling of Afghan detainees. University of Toronto law pro- fessor Lorne Sossin says it's easy to perceive a pattern in how the government deals with criticism from arm's-length agencies. "The clear signal is sent that the government simply isn't going to tolerate those that don't see the world in a similar way, through a similar lens," Sossin says. The Harper government, in his opinion, appears to believe that political expediency trumps the independence of those bod- ies, something he calls a "core aspect of administrative law." But while silencing a critical voice may serve an immediate political goal, such moves may not pay off in the long run, he adds. "It's a self-defeating, short- term gain," Sossin says. "Those bodies just become forever politicized." Once a government bends Don Jack 416 643.6933 djack@heenan.ca The business world is constantly evolving. So is Heenan Blaikie. the mandate of an adjudica- tive agency, it becomes fragile and vulnerable to the whims of subsequent administrations, he explains, noting that a tribunal can then become feeble in its authority. "It may be that because of this chill, people are going to keep their heads down." Kennedy, however, after com- ing out of retirement to accept what was to be an 18-month post, refused to be cowed. "I was not going to be deterred from what I thought was a pub- lic trust," he says. "My behaviour since Day 1 has not changed." Kennedy constantly pressed for a stronger mandate for the commission to launch inde- pendent investigations of the RCMP and issued scathing re- ports about its conduct. Throughout his tenure, he frequently ran into problems with getting access to files from the force, which doesn't have to share information about ongo- ing investigations. It's a problem that's becoming more pronounced now that the RCMP is increasingly involved in national security investigations. Kennedy says the police force has aggressively re-en- tered the world of covert inves- tigations in which it can shield itself from oversight. "It's really a black hole with respect to our ability to take a Despite the challenges, Paul Kennedy says he made prog- ress as head of the RCMP public complaints commission. look at them," he notes. More than three years af- ter the commission of inquiry around the handling of the Ma- her Arar file wrapped up, legisla- tion to enact a recommendation for an independent authority to oversee the RCMP's national se- curity operations is nowhere in sight, Kennedy says. He points out that reservations about sharing sensitive informa- tion with the public complaints commission are unfounded since it would remain classified. "We don't expect them to make state secrets public," he says. In fact, the commission largely relies on the RCMP to voluntarily share information, an arrangement Kennedy calls unacceptable. "There's no obligation, even if you are a member, to co-operate with the commission." After former RCMP com- missioner Giuliano Zaccardelli announced a criminal probe into the income-trust leak during the height of the 2006 federal elec- tion campaign, the commission faced a wall of silence in investi- gating the matter as Zaccardelli and two deputy commission- ers refused to give statements, according to Kennedy. "At the most senior level, on an issue of public importance, they did not co-operate," he says. As well, when the commission completes an investigation into a complaint, its findings aren't binding, he adds. Rather, the RCMP, in response to recommendations, may subse- quently launch its own investiga- tion and can challenge the cred- ibility of the findings of fact. "The RCMP shouldn't sit back and reinvestigate my in- vestigation," says Kennedy, who nevertheless argues the recommendations themselves, which can involve calls for fed- eral funding, don't necessarily need to be binding. "But there shouldn't be any doubt that the factual basis is not up for discussion." LT ANNOUNCEMENT Heenan Blaikie LLP is pleased to announce that Don Jack has joined the firm as a litigation partner in the Toronto office. Mr. Jack is a civil litigator who focuses his practice on commercial disputes, professional liability, class actions, constitutional, competition and securities law, and appellate advocacy. He has a wide range of counsel experience and has appeared at all levels of courts in Canada. Don is certified as a specialist in civil litigation by the Law Society of Upper Canada, and is regarded as a leading counsel in Canada, by both and He is frequently selected by U.S. counsel to represent their clients in Canadian litigation. For the past several years he has appeared at the University of Toronto Law School's compulsory moot sessions on the subject of appellate advocacy. 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