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Michael Kempa: One year after the Nova Scotia massacre report, it’s time to divide the failing RCMP in two

Commentary

This past Easter weekend, Canada silently marked the one-year anniversary of the publication of the Mass Casualty Commission’s damning report into the RCMP’s response to the 2020 Portapique massacre, the worst mass shooting in Canadian history.  

In response to a 3,000-page report calling for 130 bedrock reforms to the mounties, Commissioner Michael Duheme could only offer families of victims the faint promise that the force intends to act on those modest areas of reform that are under its control.

The main player for reinventing the RCMP, the federal government, however, was not on the scene to shed any light on its plans for the force. In keeping with the Trudeau government’s weak handling of the foreign interference and reform to the Emergencies Act files, timidity on the anniversary of the MCC report signals a lack of leadership, urgency, and vision on matters of national safety, security—and even identity.

Here is what Prime Minister Justin Trudeau, flanked by Public Safety Minister Dominic Leblanc, to share a little spotlight, should have said last week:

A failure to embark on a radical program to reform the RCMP—by dividing it into two separate entities to handle the very different demands of local law enforcement and federal high policing—would be catastrophic for Canadians and the honourable RCMP officers who serve them. This government will immediately embark on a program to work with the provinces to renew the RCMP. It will be a key part of our larger program to modernize Canada’s architecture for local and federal policing, security, and emergency preparedness, that involves interconnected reforms to the CSIS and Emergencies Acts.

Why should the federal government take this route? The compelling why behind this bold program shift can be found within the report itself, by looking into the depth of the RCMP’s problems during the brutal shooting rampage of April 2020, where a man disguised as an RCMP officer murdered 22 innocent Nova Scotians. Gabriel Wortman, dressed in full RCMP uniform, first shot his neighbours, and then set out in a replica police cruiser on a shooting spree over 200-plus kilometre distance.

The inquiry’s findings 

The inquiry found organizational and command-structure confusion, poor communication with the public, and a lack of cooperation with neighbouring police agencies contributed to the duration of the shooting spree. They also concluded there were opportunities missed to bring a troubled person long known to police under control prior to the tragedy. In particular, the MCC focused on the RCMP’s delay in issuing a province-wide emergency warning and its obtuse decision to instead communicate only partial information to the public in rural Nova Scotia via social media. The commission concluded that citizens were “deprived…of the opportunity to evaluate risks and take measures to better protect themselves,” such as staying off the roads and sheltering in place.

Over the course of the inquiry, it came to light that local RCMP command in Nova Scotia had bristled at then Commissioner Brenda Lucki’s alleged repeated pressure on them to share information about the origin and types of guns the shooter had used with the federal government. Lucki had reportedly perceived the government wanted this information to help their interests in selling new gun control legislation to the public. However, local RCMP commanders felt sharing it could compromise their ongoing investigation. The commission then did the heavy lifting of drawing upon previous reviews of the RCMP’s shortcomings, dating back nearly a half-century. They highlighted the many structural reforms that have been repeatedly prescribed, ignored, diluted, or botched by successive federal governments going back to Trudeau Père in the early 1980s.

Reforming the RCMP

Moving in ascending order of complexity, the MCC first focused on reinventing RCMP training for modern policing purposes. This would mean abolishing the paramilitary training model tracing back to the 1880s that they regarded as embodied in the physical environment of their “Depot” training academy in Regina, Saskatchewan.

While I am not as confident in the MCC’s view that it is necessary to shutter Depot entirely, I agree that having only one location for six months of boot camp-style training in rural Saskatchewan is not suitable for attracting educated, diverse recruits from across Canada. I’m also certain that a single model of training cannot possibly prepare recruits for very different futures in local community crime prevention across Canada’s mostly rural environments versus federal policing responsibilities in mostly urban centres. Modern training specific to each set of policing purposes ought to be delivered in regional centres across the country, closer to where new police recruits intend to reside. Very likely, this policing training infrastructure could involve partnerships with postsecondary institutions across the country. There is no reason why the excellent Depot facility could not carry on as one key node in this police training network, partnered with the neighbouring University of Regina.

The second set of recommendations involves reimagining the purpose of the RCMP. The MCC recommended the government undertake an independent review of the feasibility of a single service continuing to provide local policing by contract in largely rural centres and smaller municipalities across the country,  separate from those with highly specialised federal policing responsibilities. Responding to domestic disturbance calls or instances of assaults at bars in remote areas at night is very different from receiving actionable intelligence from CSIS to begin a criminal investigation into hate crimes committed by terror groups on Canadian soil. Each requires very different resources and skill sets.

Interim RCMP Commissioner Mike Duheme, right, and Assistant Commissioner Dennis Daley, commanding officer of the Nova Scotia RCMP, prepare to speak to reporters following the Mass Casualty Commission inquiry’s final report into the mass murders in rural Nova Scotia in Truro, N.S. on Thursday, March 30, 2023. Darren Calabrese/The Canadian Press.

Whether you cleave the RCMP into two separate organizations or have two streams under one organisational roof, the evidence to date (especially in a recent, damning report issued by the National Security and Intelligence Committee of Parliamentarians) indicates the current RCMP structure does not work. It bleeds personnel from federal issues to cover its vast local policing responsibilities. It also leaves newly minted federal police officers uninitiated on the complex new files they must manage. Perhaps the “Royal Canadian Rural Police” and the “Royal Canadian Federal Police” are suitable monikers for two new separate organisations.

To its credit, Mountie brass recently tried to take a small step in this direction. They set up a pilot program to directly recruit specially qualified entrants in federal policing directly to HQ in Ottawa—bypassing the traditional route of all applicants first passing through Depot, spending a decade in local policing, and only then “advancing” to the unrelated field of federal policing. While this is a welcome development (many of my University of Ottawa criminology students, for example, express more interest in a career in the Mounties focused on federal policing functions), there was a glaring problem: RCMP command forgot to involve the Mounties’ police federation (i.e., union) in its program to overhaul recruitment, promotion, and hiring practices. This is a major management and collective agreement “oops” which has placed that pilot initiative on ice.

Desperately needed massive RCMP restructuring won’t only require the union’s go-ahead, but must be informed by a better understanding of the officers already serving. There need to be surveys of RCMP membership to determine what types of policing futures officers would like to concentrate on. For example, questions like who would like to transfer to independent local policing services, and how many might like to be a part of a federal policing-focused service? 

Second would be tackling the economics of shifting the federal subsidy of contracted RCMP services (the federal government pays 30 percent of the total cost of the Mountie contracts, in most instances) to help local governments with start-up costs for new independent services or separate revamped, locally-sourced-and-run RCMP units.

This takes us into the most complex and important dimension of RCMP reform detailed by the MCC and the many unheard ancestor reports before it: governance and accountability.  

For both local and federal policing to truly be democratic, two things must exist. First, mechanisms to input society’s values and priorities (including those of our weakest citizens) into police policies and approaches—proactively shaping policing through both community knowledge and skilled business management. Second, proper mechanisms to hold the police to account for achieving results within the framework of the Charter.

At present, in all the above dimensions, the RCMP has inadequate governance and accountability for both local and federal policing.

Family and friends of the victims of the April 2020 murder rampage in rural Nova Scotia, stand outside the RCMP detachment as they mark the one-year anniversary in Bible Hill, N.S. on Sunday, April 18, 2021. Andrew Vaughan/The Canadian Press.
Locally sourced policing

A national police service with officers hailing from across the country that is legislatively responsible to a commissioner and federal minister in Ottawa will never be truly attentive to local communities and their unique needs. They cannot compare to homegrown police services that answer to special city council committees (see Quebec) or independent civilian oversight bodies (see other parts of Canada). 

A half-century of RCMP scandals and collapses (1970s harassment of political opponents in the Parti Québecois, anyone?) shows that commissioners too often manage with “one eye looking up,” anticipating the needs (or, more rarely, following the commands) of their political bosses. After all, they are considered a deputy minister, serving at the pleasure of the minister for public safety. 

The half-century of recommendations makes it essential that the modest civilian RCMP Management Advisory Board that the Trudeau government has established now be legislatively empowered to act as a real board of management, where the directives of government and the responsibilities of commissioners are overseen.

The status quo cannot go on. As things stand, a beleaguered, poorly structured RCMP leaves Canada a sitting duck to foreign interference, ideologically motivated violence, and global organized crime. 

It also leaves RCMP officers under-resourced, stressed, and saddled with an insular and dated culture—all factors that mean the force will continue struggling to retain skilled veterans and recruit diverse members.

Similar to the 1980s, we are at the threshold of a bold triptych of potential reform. The original RCMP Act, CSIS Act, and Emergencies Act were all drafted in the middle of that decade in support of their common purpose to contribute to collective security and national identity, all under the organising wings of the Charter. 

But without bold federal action on all three fronts, the Mounties are now on a collision course for organizational collapse. The Trudeau government has only shown timidity on this front, like all governments before it. Plans for this triptych must be front and centre in all of the parties’ platforms when election day 2025 arrives. 

Norman Siebrasse: The real problem with the Supreme Court calling a woman a ‘person with a vagina’

Commentary

In last month’s Supreme Court of Canada decision in R. v. Kruk, the Court used the term “a person with a vagina” rather than “woman.”R. v. Kruk, 2024 SCC 7 [109] rev’g 2022 BCCA 18 aff’g 2020 BCSC 1480. Contrary to some overwrought comments on social media, the Court was not saying that the preferred term for “woman” is “a person with a vagina.” The use of the phrase nonetheless gives real cause for concern as to whether the Court will be able to fairly adjudicate the cases on trans issues that are sure to come before it.

The main issue in the case was a technical but important point of evidence law. Please bear with some legal background, including with regard to the particular case. Sexual assault cases often turn on the credibility of the accused and complainant, as the crime is typically committed in private and there is often no independent corroborating evidence. In assessing the evidence, a trial judge must necessarily rely on their common sense about human behaviour. But sometimes common sense is not sensible at all; trial judges once relied on the myth that a victim of sexual assault would report the assault immediately and would discount the evidence of a victim who did not do so. The issue in Kruk was how to strike the right balance between common sense and expert evidence in the context of sexual assault.

The accused had been charged with sexually assaulting the complainant while she was blacked out from extreme intoxication. The trial judge convicted, relying in part on the complainant’s evidence that when she woke up, “she felt his penis inside her and she knew what she was feeling.” The trial judge remarked that “[i]t is extremely unlikely that a woman would be mistaken about that feeling.”2020 BCSC 1480 [68]. Focusing on this sentence, the British Columbia Court of Appeal held that the trial judge had erred in law by relying on possibly mistaken common sense about what “any” woman would feel, even when highly intoxicated, when the true question was what this particular complainant had felt. The Court of Appeal therefore set aside the conviction and ordered a new trial.

The Supreme Court unanimously held that the trial judge was entitled to rely on the complainant’s evidence and restored the conviction, with Justice Martin writing for the majority. Justice Rowe wrote a concurring decision, with a separate analysis, agreeing with the result.

The majority decision was almost entirely business as usual for the Supreme Court in a criminal law case: a dispassionate analysis of a technical evidentiary issue applied to disturbing facts. The contentious statement was a single phrase in the Court’s summary of the law: “Where a person with a vagina testifies credibly and with certainty that they felt penile vaginal penetration, a trial judge must be entitled to conclude that they are unlikely to be mistaken.”R. v. Kruk, 2024 SCC 7 [109]. In context, it is abundantly clear that the Court was not suggesting that the preferred term for a woman is “a person with a vagina.” The Court referred repeatedly to “woman” and “women” throughout its decision and discussed at length myths and stereotypes relating to “women.” The only use of the contentious phrase was in that single sentence. The Court never referred to the complainant herself as “a person with a vagina”: the contentious sentence was a general statement of law, not a statement about the complainant in this case.

The Court did say that the trial judge’s use of the words “a woman” was unfortunate, but in context is clear that the word “a” was unfortunate, not the word “woman.” The Court of Appeal has seized on the phrase “a woman” to criticize the trial judge for making unsupported assumptions about all complainants and the Supreme Court spent several paragraphs pointing out that, read in context, the trial judge’s reference to “a woman” was a conclusion about the complainant specifically. By saying the trial judge’s use of the term “a woman” was “unfortunate,” the Supreme Court was trying to soften the blow by providing an excuse for the Court of Appeal’s error.

With all that said, there is still a puzzle. Why did the Court refer to “a person with a vagina” instead of simply “a woman”? The answer seems to be that it is precisely because the statement was a general statement of law and not a statement about the complainant specifically. The Court evidently wanted to indicate that such evidence should be accepted not only when a woman testifies that she felt penile vaginal penetration, but also when a man with a vagina so testifies. In other words, the Court is acknowledging that trans men are men, and by implication, that trans women are women.

The view that trans women are women is politically controversial and legally unsettled. It is also a matter that may well come before the Court. For instance, many of the governing bodies in international sports have implemented policies that biological men cannot compete in the women’s category if they have gone through male puberty.See UCI (cycling); World Athletics (track and field); World Aquatics. If Canadian sports bodies follow suit, it is very likely that there will be litigation on the question of whether prohibiting trans women from competing in the women’s category would constitute unlawful discrimination on the basis of gender identity under the Canadian Human Rights Act.

Litigation on similar questions is already ongoing in the United States.Here and here. Most Canadian jurisdictions allow people to change the sex indicated on the official documentation, such as a driver’s licence or passport, but the legal effect of such a change is unclear, as we do not have any legislation equivalent to the U.K. Gender Recognition Act which provides that when gender recognition certificate is issued pursuant to that Act, the person’s gender becomes the acquired gender.Gender Recognition Act 2004 (UK) s. 9

The Court must have known that this statement would be controversial. No one who takes even a casual interest in public affairs could fail to have noticed the controversy. Why then did the Court comment on this issue, even indirectly? It was not necessary for legal clarity. None of the parties in the case were trans-identified. The phrase “woman” was used throughout the case in every other context at every level of court. None of the eight parties who appeared before the Court raised the issue in their submissions.Which are available on the Court’s website, here and here. In this context, if the Court had used the word “woman” instead of “a person with a vagina,” the lower courts would undoubtedly have understood that the same rule would apply to the evidence of a man with a vagina.

Police stand between protesters opposed to gender diversity in schools, right, and counter-protesters advocating for trans rights, left, in Halifax on Wednesday, September 20, 2023. Darren Calabrese/The Canadian Press.

Now, it might be said that given the controversy, it would be advisable to acknowledge the existence of trans men even though it was strictly unnecessary to the decision. But this could have been done while leaving open the question of whether trans men are men in fact and in law, for example by saying “The same rule of course applies to trans men.” 

Using the term “a person with a vagina” without acknowledging the controversy implies that there is no controversy. The Court is signaling that, in its view, the notion that trans men are men is as uncontroversial as saying that the sun rises in the east. This means that the Court has signaled that it has pre-judged a controversial legal issue that is likely to come before it. Now, it is certainly true that this statement is obiter dicta, and so would not be binding in any case the Court might hear dealing with trans issues. And the remark does not necessarily imply that the Court has made up its mind as a matter of law. It would be possible for a judge to hold the view that trans women are women while being open to the possibility that they are not women in law for the purpose of competitive sports.

But the fact that the Court has not strictly bound itself to hold that trans men are men, and trans women are women, is not the point. Our trust in the courts requires confidence that the court will approach any case that comes before it with a mind open to legal arguments and factual evidence. In this case, the Court went out of its way to insert a legally and politically controversial statement into the decision when it was completely unnecessary to do so. That necessarily undermines our confidence in the Court’s willingness to adjudicate this issue with an open mind when it inevitably comes before the Court. 

It has become increasingly common for companies and institutions to take a public position on politically charged issues. It is no coincidence that polls show that trust in all major institutions is declining. We might have hoped that the Supreme Court of Canada would remain a last bastion of impartiality that would retain the trust of Canadians. The Kruk decision suggests that hope might be in vain.