Policing in a Free, Democratic and Liberal Society

BGEN. ANDRUNYK:

Distinguished guests, members and friends of The Empire Club of Canada: Last Saturday, Her Majesty Queen Elizabeth the Second, Queen of Canada, proclaimed Canada's new constitution. The Empire Club, dedicated to promote the interests of Canada and the British Commonwealth, takes pride in this historic event and salutes the generations of Canadians who have worked together to create this great nation of ours.

It is indeed a happy coincidence that our first speaker after that notable event in our history should be the head of a world-renowned Canadian institution that over its 109 year history has made an immensely significant contribution to our nation's development.

You will recall that it was 115 years ago, in 1867, that the confederation of the British North American provinces into the Dominion of Canada was achieved. Less than three years later, in 1870, the Red River settlement became the new province of Manitoba and in 1871 British Columbia became a province as well. Lying between these two new provinces was the 'region known as the North West Territories, the hunting ground of a number of tribes of plains Indians who were valiantly trying to defend their land against the invasion of settlers and adventurers. To help bring a peaceable settlement in the area, a Privy Council order was passed on August 30, 1873 establishing a corps of mounted riflemen named the North West Mounted Police. Less than a year later some three hundred officers and constables of this newly formed force rode into the Territories to keep law and order. In the long and illustrious history of the North West Mounted Police, later the Royal North West Mounted Police and since 1920 the Royal Canadian Mounted Police, law and order have been kept in a highly professional manner.

As the sole federal law enforcement agency of Canada, the RCMP is controlled and administered by a minister of the Crown. From its central headquarters in Ottawa the operations of the force are directed by a Commissioner who oversees the seventeen divisions of over ten thousand officers and civilians. In federal matters the RCMP covers the entire country. In provinces where it also serves as provincial police, enforcing the laws of the provinces and the criminal code, it can by special agreement police towns and municipalities.

Today The Empire Club of Canada is honoured to welcome to its podium the Commissioner of the RCMP, Robert H. Simmonds, who has held that post since September 1977. Born in Hafford, Saskatchewan, a village of five hundred situated some hundred kilometres north-west of Saskatoon, he completed his high school in that province. At the age of eighteen, in December 1944, he joined the Royal Navy Fleet Air Arm and served until his demobilization in October 1945.

He entered the RCMP in early 1947 and after completion of his basic recruit training at Regina he was posted to Edmonton on highway patrol duties. In the ensuing eighteen years he rose to the rank of Staff Sergeant, serving at detachments in several Alberta Communities. He was promoted to commissioned rank in 1966 and since that time has served in a number of senior appointments in British Columbia and Ottawa Commissioner Simmonds also holds the post of Vice-President for the Americas in the International Criminal Police Organization (Interpol) to which he was elected at the 78th General Assembly held in Nairobi, Kenya in 1979.

Ladies and gentlemen, it gives me great pleasure to welcome Commissioner Simmonds to The Empire Club of Canada and to invite him to speak to us on policing in a free, democratic and liberal society.

COMMISSIONER SIMMONDS:

Ladies and gentlemen: I am pleased to be here this afternoon, although I admit to slight surprise that you would wish to hear from the Com missioner of the Royal Canadian Mounted Police, an organization that keeps so low a profile and one that is so seldom the subject of public comment.

Furthermore, in reviewing your list of previous speakers, I note that you are generally favoured with comments from people who are in a position to have considerable impact on public policy, locally, nationally and internationally. Frequently, also, it seems to me, your speakers have a great interest in being elected, or re-elected, to some office or another. Just let me assure you that my potential for impact on matters of public policy is not high, and I certainly am not in the business of trying to get elected to any office, because in my role I do not play the political game at any time. Nevertheless, I welcome this opportunity to put a few of my thoughts on record.

Since being appointed Commissioner of the force in 1977, I have received two previous invitations to appear before you--in 1978 and again last year. On those occasions I found it necessary to decline for several reasons, but one very compelling reason was the fact that during that time the force was deeply embroiled in public scrutiny through the medium of several commissions of inquiry, and had I come forward in an effort to set the record straight on some of the issues I would have been immediately set upon and accused of trying to influence public opinion, or enlist public support, before all the facts were in and thus interfere with the work of the commissions.

Furthermore, had I tried to put an objective and fair interpretation on certain facts that at times were reported, in some circles, in such a shockingly distorted and biased manner, it could have appeared that I was also defending certain other actions and policies that in my view were not defendable, and that I was busy cleaning up in exercising my responsibility as Commissioner of the force. Thus, had I appeared too defensive, it would have weakened my ability to influence responsible change within the force and within the circles of government in which I must operate.

I must say, though, that during those years there were times when I was sorely tempted to fire back in defence of the force and its members, when the reporting of certain incidents was totally lacking in objectivity, when interpretations badly misrepresented the force's position on a number of issues, and certain accusations and innuendoes which suffered totally from the lack of a factual base were left in the air. I now feel that my decision to work aggressively within the system, and as far as possible to avoid public confrontation over some of the more outrageous condemnation and deliberately slanted comment was the right one, particularly so because throughout I was continually receiving rather strong signals that public confidence in the integrity of the force and its mission remained at a high level.

Perhaps you will forgive me if I just add that I take considerable pride in the fact that members of the force, a force that is largely made up of committed but really rather young Canadian men and women, never let down one bit during that protracted period of criticism and (at times) condemnation. In fact during that time some of the most significant cases that the force has ever had to contend with were developed in a highly professional and competent manner, to say nothing of the thousands of more routine matters that were handled as a matter of course in delivering a police service at the federal, provincial and municipal levels.

I was often asked by journalists, and others, about the state of morale in the force in the face of all the adverse comment. It was never an easy question to answer because a person's morale is such a variable circumstance, one that is influenced by many factors on a day-today basis. But if one measure of the morale of an organization is its willingness to respond to public need, and its commitment to meet without equivocation even the most difficult and hazardous tasks, I can only judge that the morale of the force remained at a very satisfactory level throughout. When all is considered I hope that fact gives you some reassurance about the strength and quality of the force and its members, because it certainly did to me.

Now before I stray entirely from the past, and lest my comments to this point leave a wrong impression, just let me add that despite the agonies and at times the unfairness of the process, I happen to believe that the commissions to which I have alluded were necessary. Canadian society has been evolving quickly over the last few years and the need for a fundamental review of security and policing issues was perhaps overdue and inevitable.

Not everyone will agree with either the process or the results, but certainly it got attention. Hopefully, there will be a number of reforms and an assurance that the police and security agents of the country (I am not going to say of the government, but rather of the country) are doing that which is required on behalf of the nation, in a completely acceptable fashion, and with a broad foundation of public support that is based on an enhanced knowledge of the issues and problems, so that when crises develop and difficult cases come along they can be judged in a better light. And I can assure you that from time to time difficult and controversial cases will come. The very nature of our work assures that such is inevitable when you consider what we have to contend with.

Likewise, I recognize the essential role of the media in getting all sides of an issue before the public. I do, however, subscribe to the necessity of accuracy and objectivity on the part of that very powerful and yet very necessary instrument in an open and democratic society, and despite my earlier comment with respect to the reporting of some issues, it is my assessment that on balance this test was quite well met by a considerable portion of the public media.

Thankfully, the period of examination is now behind us. I am not going to dwell further on the past but wish now to say a few words about some current issues that will surely impact on the future.

It is very topical these days to speak of "police powers" and some voices tend to give these two words an almost sinister connotation as though they represent some sort of draconian authority that hovers over good citizens ready to pounce at the slightest indication of deviation from some rigid set of rules governing human conduct. I don't even like the expression "police powers." Rather than talk about "police powers," I prefer to think of the authority that has been given us, the instruments that society has put in the hands of their agents, the police. Society has entrusted the police with the responsibility of ensuring the maintenance of public order and the protection of ordinary citizens from those who would prey upon them. Thus it seems to me that any discussion concerning the authority that the police need to carry out the responsibilities that have been given to them must be against a background far broader than that which is often voiced by those who argue only for almost unbridled individual freedom and liberty. It strikes me that those who speak most loudly in support of individual freedom and liberty spend little time speaking of the converse requirement if a society is to function truly democratically, and that is the need for every individual to exercise a high degree of responsibility toward his fellow man. The more that individual freedom is guaranteed, the more essential it is that the recipient of these freedoms exercise a high degree of responsibility for his actions, and the more important it is that society be able to exact a 'degree of accountability from those who abuse those freedoms and the rights of others. If the two are not well balanced, free society would soon deteriorate to anarchy where only those most able to protect themselves would prevail. Therefore, in discussing the authorities that the police need to attend to their responsibilities, other much broader questions must be asked in order to keep the issue in perspective and maintain the balance to which I refer.

If you accept that the purpose of the law is to allow men, despite their somewhat quarrelsome and perverse nature, to live as far as possible in harmony with one another, and thus allow society to progress while individuals go about their affairs in accordance with their own desires and abilities and without undue fear of being victimized by those who choose not to apply themselves in a responsible manner, then the need for the enforcement of the law, and the need to call to account those who breach it, becomes apparent. The question is, how do you go about it? Different countries have evolved different principles and traditions to deal with this difficult question.

In deciding if the Canadian system is good or bad, adequate or inadequate, it is necessary to consider what is done in other jurisdictions. I will not dwell upon some of the more primitive customs that are still in vogue today, in 1982, in some parts of the world. Just let me comment that in some very advanced societies, with a long history of legal tradition, it is still accepted that once a crime has been committed and an offender identified, the onus is immediately shifted to that individual to establish his innocence as the presumption of guilt is quickly assumed. In a number of other countries, a suspected or accused person can be taken before a magistrate where he is compelled to answer questions with respect to his conduct and he does not have the right to remain silent, nor the right to perjure himself without penalty. In many countries custody, as opposed to the freedom of bail, is the norm, no matter what the offence or the duration of the proceedings. While the right to counsel is now almost universally accepted, in many jurisdictions that right is severely limited by the accused's ability to pay for it.

So against these well entrenched legal traditions in many parts of the world, along with several other variants, what is the Canadian situation?

In Canada:
- Once a suspect is identified following a crime he has the right to remain silent. At no time during the investigation or court proceedings can he be compelled to say one word against his own interests, nor is he required to give any sort of accounting for his conduct.
- Since the Criminal Code amendments of 1974, the availability of bail in all but the most serious of circumstances is virtually assured. With our very liberal bail provisions, the desire on the part of the accused to proceed quickly to trial is a thing of the past, and for a very good reason, because the longer the delay the more the Crown's case weakens. Unfortunately, sometimes in cases involving highly organized and violent criminal activity, witnesses and evidence are lost for all time.
- The availability of legal assistance for the defence of a criminal is assured in Canada, often through the medium of legal aid. Thus, at least indirectly, a victim may well contribute to the cost of the defence of the person who took advantage of him in the first instance.

Now I am not speaking out against the absolute right to remain silent, nor am I being critical of the nearly unfettered right to bail, nor that clear right to legal defence and so on. Indeed I take some pride in being the citizen of a country that is fundamentally secure and mature enough to be able to afford such rights, and progressive enough to pass them into law. But what I am saying is that because these entitlements do exist for the wrongdoer, we must carefully consider what instruments are necessary to ensure that when a citizen is fraudulently or brutally victimized, the perpetrator can be effectively called to account through the justice system.

We can all be proud that in Canada we have developed a society that is really not too harsh, not too full of fundamental divisions between classes of people, a society that is really quite tolerant of divergent views and so on--but that is not to say that all is sweetness and roses. I take some alarm at the constantly escalating crime rate, particularly in the more serious classes of offences. I am not going to recite a litany of statistics, but the number of violent offences against individuals and institutions is to me very worrying, and to the victims of course very much more so. I am speaking of offences such as murder, assault, robbery, sexual attacks of all types, terrorist activity and ago od deal of violent property damage. The perpetrators of these offences, although generally on the young side themselves, have no respect for the age, sex or circumstances of their victims.

Looking back over thirty-five years of police service, most of which was spent in field operations dealing directly with crime, I have seen many bizarre and shocking cases that clearly illustrate the depth of degradation and inhumanity to which man is capable of sinking. But even with that background I sometimes get chills today when I review the increasingly prevalent cases of cold-blooded and violent victimization of totally unsuspecting and ordinary citizens. There is a disturbing thread of harshness and cruelty running through much of this activity.

One more word concerning the crime picture, and that is the fact that a great deal of violent crime has its roots, one way or another, in the illegal traffic and use of narcotics. It is impossible to precisely measure the corollary between this terrible problem and all other criminal activity, but suffice it to say that it is substantial, and certainly it has a direct connection to much of the most violent and wantonly senseless crime. While I don't think for one moment that the answer to the drug problem lies solely in heavy enforcement, because the causes and thus the solutions lie somewhere much deeper in society, there is no doubt in my mind that while solutions are being sought a vigorous enforcement campaign is essential. The ability of the police and the justice system to deal with this problem is in need of strengthening rather than weakening. Therefore I say that not one authority that presently exists should be removed and indeed new authorities should be considered.

When I speak of the need for additional authorities, I refer among other things to the need for access to information that is stored in data banks maintained by your governments at your expense. Does it make any sense that your agents, the police, when you are threatened or victimized, should be denied access to critical information that is in the hands of other agents of yours, who happen to be employed in other departments of governments? After all, you pay for the whole spectrum of government activity and surely you want all segments to assist each other in dealing responsibly with the problems that affect you. Let us just think about a few examples.

What about medical records? Suppose for a moment that there is an aircraft in Canadian skies in the hands of a hijacker; its crew, along with perhaps a couple of hundred passengers, are completely at his mercy. Let us suppose that the identity of the hijacker becomes known. Perhaps it is realized that the individual has recently required medical attention due to some form of mental instability. Should there be any question at all as to whether or not the police should have access to any information that might assist in the successful negotiation with the hijacker and the eventual release and safety of all hostages involved? While this case may sound rather dramatic I have described a situation that could be all too real, and there are many other instances where common sense alone dictates the need for police to have timely and unfettered access to medical information when investigating serious crime.

What about taxation records? Should these records be so sacrosanct as to protect people who maintain themselves entirely through criminal activity? Not only is the citizen the victim, but as I said earlier he is supporting through taxes a legal aid program, while at the same time it can be assured that nearly all the lucrative profits from criminal activity are not being declared for tax purposes. Does it make any sense that tax and police agents should not have full and detailed access to records in order to deal with this type of rip-off and plunder?

What about the mails? Should the publicly funded postal corporation provide a totally secure communication network that will allow criminals, or perhaps agents of foreign governments, to scheme against an individual's interest, or the interests of the nation? In 1974 Parliament enacted what is known as the Privacy Act within the Criminal Code. That law made it an offence to intercept electronic communications. However it included an exemption for police investigations, whereby a judge could authorize the police to intercept communications upon meeting a test in which it must be demonstrated that serious criminal activity is taking place and that normal investigative techniques are not being successful. When the test is met the judge can authorize interception under prescribed conditions that ensure adequate supervision of this technique. Surely the same principle should apply to the mails, particularly as the interception of a letter under these controlled circumstances is even less intrusive of a person's privacy than listening to his telephone calls or installing a listening device in his place of business or his home.

I could go on with a number of other examples but I think you will now have the drift of the type of authority that I am referring to. But I would also say that presently existing authority should not be tampered with. Here I refer directly to the controversial issue of writs of assistance in the enforcement of the Narcotic Control Act. If there is to be a change, it should be debated in the light of the problem that has to be dealt with and not solely in the light of individual freedoms.

If my views with respect to the additional authorities that are needed to maintain the balance that I previously referred to are sound and supportable, it may bring some comfort to those who disagree with me to know that I also subscribe to the need for supervision to ensure that they are used only in proper circumstances. The type of supervision that I described a moment ago with respect to electronic surveillance is well accepted by the police and in my view it has served the citizens' and the nation's interests well. It could serve as a model to ensure that there is no abuse of any other authorities that need to be placed in your agents' hands for your protection.

I have recently read some criticism of the extent of the use of this technique. I cannot speak for all Canadian police forces in that regard, but with respect to the Royal Canadian Mounted Police I challenge the critics to show an instance where it was used without the authority of a judge of a superior court in accordance with Canadian law. And furthermore, if the cases are examined, I would just ask reasonable people to consider how else we could have dealt with the problem, bearing in mind the degree of protection and insularity criminals and criminal organizations can build around themselves in our eminently free society where many doors are closed to aggressive police investigation. Although I certainly respect the right of the critics to criticize, I cannot help but feel that some of their criticisms are at times based on a somewhat idealistic view of life and crime in this country.

It occurs to me that you may be asking yourself "Why has the Commissioner been talking to us in this vein at this time?" Let me tell you why. Like you, I have great respect for our democratic way of governing ourselves. Despite all its imperfections it seems to be preferable to any other system that can be found in recorded history. Fundamental to that system is a high measure of individual freedom to pursue our lives in the manner of our choice: the right to have different views and the freedom to express them publicly, the right to succeed no matter what our roots and conversely, I suppose, the right to fail if we choose not to grasp the opportunities that are placed before us. But also fundamental to our system is the necessity for each of us to respect the rights of all other well intended persons.

Against that somewhat idealistic background, I look at the reality of criminal and subversive activities today. It is clear that quite a number of people have opted not to accept their responsibilities concomitant to the freedoms they enjoy. I add to that the concerns that have been so loudly expressed in some quarters about inappropriate police activity at times of crises within the nation or when dealing with serious criminal activity. However, in this regard I would just like to say that despite a few aberrations, of which none of us is proud, the Canadian police perform to a very high standard of professionalism and conduct.

I say that with some knowledge and authority because as Commissioner of the RCMP and, for three years now, a Vice-President of Interpol, I have had the opportunity to discuss these problems at the political and most senior police levels in many parts of the world. I have had the opportunity to look firsthand at the problems and the reaction to these problems by government and police authorities in quite a number of jurisdictions. On each occasion I have learned something worthwhile, but on each occasion I have also found that my appreciation has been reinforced as to just how fortunate Canadians are to have the general standards and approaches to law enforcement that we accept as a matter of course.

Just last week our constitution was delivered to us. The Constitution Act contains within it the Canadian Charter of Rights and Freedoms for which I, and I expect all of you, have great respect. This charter enables sanctions to be brought against those who fail to meet its provisions, including, of course, the police.

With that background--our fundamental belief in the freedom of the individual, now even more solidly entrenched through the constitution, together with our concerns for the appropriateness of police activities, set against the reality of criminal activity in a sometimes hostile world--it is my view that a great deal needs to be done.

We have just come through a very long period of difficult examination, which is not entirely over yet as there are still matters before the courts about which I cannot comment at this time. It was a period of examination that was necessary, but in many ways it was unduly negative and burdensome, and extremely hard, not only on the organization but more so on a number of individuals who have been required to bear a burden that was at times unconscionable and wrong. It is true that in a few cases the actions of a few individuals went too far and are not supportable. But even in those cases it is clear that they resulted from over-aggressiveness in dealing with a very difficult problem, not from any motivation for personal benefit or other criminal intent. These cases were clearly aberrations and when they came to light in the summer of 1977 I recommended that they be referred to the appropriate Attorney General for examination. Upon being appointed Commissioner in September 1977, I insisted that this take place and it was done. But to take those incidents and extrapolate from them that the force as an organization shows a general disrespect for the law and for the political institutions to which it must account is not a proposition that I can accept. It is simply not an accurate nor fair characterization of the force and I take some comfort from the fact that in the Government of Canada statement of August 25 last it was clearly stated that the government also rejected such a thesis.

I do not wish to rake over the old coals, or re-ignite the arguments. That is now behind us and being an optimist by nature I look positively to the future, but the issue is that a commission of inquiry came to certain conclusions based on its interpretation of the law, whereas the Department of Justice, our legal advisers, on their own analysis of the law and supported by independent and equally respected legal advice, came to some quite different views as to how the law should be interpreted.

That came as a great relief to me because these latter interpretations are the foundation for much of the policy that directs our operations. Also they enunciated the principles that have guided my actions over the last thirty-five years when at times my own neck was quite a long way out in trying to cope with difficult and sometimes dangerous problems that had been created by those who chose to live by criminal means and who had no regard for their victims. But even with that reassurance, what does it do to the policeman in the field who has to make fast and difficult decisions in carrying out the duties that you have assigned to him? He is well aware that among well respected jurists and lawyers there are opposing views as to the state of the law and thus of the limits of his authority, and he is now increasingly aware that if there is any indication, or suspicion, that he may have violated someone's rights he will be put through the wringer.

Simply put, I believe that the law must be made more precise in a number of areas. It must be made clear when and under what circumstances the law, as it applies to the everyday conduct of citizens, does not apply to the police in the course of investigating crime and subversive activities. Although the crisis has passed, these issues cannot be swept away only to await the next crisis.

I am happy to state that much is going on at both the provincial and federal levels and intergovernmentally to address these issues. But in the end it is my view that this must lead to a considerable amount of legislative activity. That will not be an easy process. It never is. But in this matter the difficulties will be compounded by the fact that there will be those who will take the view that any attempt to codify these issues will represent an extension of "police powers" and they will be prepared to lobby strongly, eloquently and emotionally to support their position. Such is their right. But it is equally important that the moderate and informed Canadian voice be heard. After all, it is your society.

After what we have been through, my commitment to the RCMP and more broadly to the Canadian police community has been, and is, to do all that I can to ensure that Canadian policemen can go about their daily duties with a minimum of uncertainty as to the limits of their authority, and at the same time seek those additional authorities that I think are essential if we are to be effective.

My objective is not to put more "power" in the hands of the police, but rather, only to try and maintain the balance so that all Canadians can enjoy to the maximum extent possible those rights and freedoms that are guaranteed to them unless they choose to disregard the rights of their fellow citizens. But it is not my view that the police should become the principal lobby for this change, and I say that for two very good reasons.

First, if we spoke out too loudly those who think differently would immediately label us as being reactionary, rednecked and insensitive in the area of civil liberties. That would be unfortunate because it would not only be a most inaccurate portrayal of Canadian police generally, but it would also stand in the way of our attempts to "build bridges" to all segments of the community--an area where much work has to be done.

Second, and perhaps more important, you will note that throughout my comments I have referred to the police as your agents. That is a very important perspective and one that goes back to the very beginning of organized policing at the time of Sir Robert Peel, when a police force was created to relieve the citizens of the onerous responsibility of having to do night rounds and attend to the public peace as part of their civic responsibility. Unfortunately, as police forces grew and became more professional, citizens increasingly backed away from this fundamental responsibility. Because they were to some degree closed, police forces tended to get out of step with community problems and sensitivities, and thus unfortunately a large gulf at times developed between citizens and their police. A lot is now being done to close that gulf. Hence the bridge building I referred to a moment ago. But fundamental to successful law enforcement is the perspective that in the end the police are the agents of the citizens. It is really up to the citizens, through the democratic process, to determine what it is that they expect of their agents and how much authority they are prepared to give them in order that their interests can be protected. Clearly, the agent should not set the standard by which the master should live. Therefore the police should never become lobbyists at the political level: professional advisers yes, lobbyists no. Setting the standards is your responsibility.

It is up to you to ask the fundamental questions. How much crime am I prepared to tolerate, how many risks am I prepared to take because I feel that everyone should be free to do their own thing? Under what conditions should those who violate other people's rights be required to give up some of their own? How effective do I want and expect our police agencies to be in protecting us from predators? Have the police, acting on my behalf, sufficient authority to deal effectively with those who threaten to harm me or violate my rights? If the police need more tools to deal with threats that worry me, under what conditions and controls should they be permitted to use them?

When you have considered these questions and come to your conclusions, your voice should be heard. My commitment and assurance to you is that we will operate strictly in accord with the authorities that you place in our hands, as effectively and professionally as possible, but always limited by the tools that you are prepared to provide us with. That is precisely why I have addressed you in this vein today.

The thanks of the club were expressed to Commissioner Simmonds by the Honourable Mr. Justice Joseph H. Potts, a Past President of The Empire Club of Canada.