ISSUES OF INTEREST
A Journal Devoted to Topical Policing and Legal Issues for Operational Police Officers in British Columbia

Vol.49No.4

Justice Institute ofBritish Columbia - Police Academy

October, 1998

SEARCHES - IS THE PENDULUM
SWINGING BACK?
&
&
Craig S. MacMillan, LLB., Ph.D. (Barrister

Introduction

Two recent cases from the British
Columbia Court of Appeal
("B.C.C.A."), R v. Ferris 1 and R v.
Yamanaka, 2 have defined significant
search authority relating to
"investigative detention" and
"articulable cause" that will decidedly
impact police practices. The purpose
of this article is to examine these
cases and consider whether the
pendulum is beginning to swing back
to permit certain searches based on
the operational realities confronting
police officers.
Background

The Ferris case raised for the first
time in the B.C.C.A. the issue of an
"investigative detention" (also known
as frisk search, pat down, stop and
frisk or Terry Stop in the U.S.) and
the existence or scope of the power
of the police to search a person
detained on the basis of "articulable
cause."
In Ferris, two police officers
queried the licence plate of a vehicle
they were following. The licence plate
was stolen and when the emergency
equipment was activated on the police
vehicle the suspect vehicle did not
stop. Eventually the suspect vehicle
entered a parking lot, the driver bolted
from the vehicle with one officer in
pursuit and the other officer held the

Solicitor)

George J. lvanisko, LLB., J.D. (Crown Counsel)

two passengers in the vehicle at gun
point and waited for backup. When
assistance arrived, the officer ordered
the passengers out of the vehicle. One
of the passengers, Ms. Ferris, was
advised by the officer that she was
"under investigation for possession of
stolen property", she was handcuffed
behind her back and then subjected to
a "pat down" search. Ms. Ferris
provided a name when asked, and
indicated her identification was inside
the waist pack she was wearing. The
officer removed the pack to look for
identification and for "any weapons she
may have had in the pouch." Aside from
identification, the officer located two
ounces of cocaine in the waist pack.
The trial judge found the search
constituted a breach of s. 8 (reasonable
search and seizure) of the Charterand
excluded the evidence. The B.C.C.A.
was called upon to consider the validity
of the search of the passenger's waist
pack during an "investigative detention"
under s.8. There are three requirements
for a search to be constitutionally valid:
( 1) it must be authorized by law; (2)
the law itself must be reasonable; and
(3) the manner of the search must be
reasonable.3 Ryan J.A. (Newbury J.A.
concurring) and Finch J.A. agreed, for
slightly different reasons, that in certain
circumstances, there is common law
authority based on articulable cause to
investigatively detain and search
individuals.
Authorized by Law

Investigative Dention ...................... I
Labour Relations in The RCMP ....... 4

As a preliminary point, Ryan J.A.
noted that the difference between the
Ferris case and the traditional search

cases is that here: (1) the detention
was intended to be brief; (2) the police
were investigating a crime which was
either in progress or had just occurred;
and (3) the search was undertaken for
purposes other than to discover
contraband. 4

The Detention
The first task for the Court was to
determine whether the
(a)
(investigative) detention and (b) (frisk)
search were authorized by law. Since
there was no statutory (or incident to
arrest) authority for the search the
Court had to consider whether at
common law there is a police power
to "detain for investigation." Relying on
the Ontario Court of Appeal ("O.C.A.")
i:J. R v. Simpson, 5 which held that
investigative detentions are lawful if
based on articulable cause, all three
B.C.C.A. justices agreed "there is a
common law police power to detain a
person in the course of a police
investigation."6 The Simpson test for
articulable cause is:
... a constellation of objectively
discernible facts which give the
detaining officer reasonable cause
to suspect that the detainee is
criminally implicated in the activity
under investigation ... A "hunch"
based entirely on intuition gained
by experience cannot suffice, no
matter how accurate that "hunch"
might prove to be.7
However, Doherty J.A. in Simpson
warned:
I should not be taken as holding
that the presence of articulable
cause renders any detention for

1

Editor:

Craig MacMillan, B.A., M.A., LLB., Ph.0
Associate Editors:

Steve Watt, M.B.A. (Director, Police Academy)
Paul N. Tinsley, B.A., M.A. (Police Academy)
Editorial Board:

Jack L Gibson, LLB. (Crown Counsel)
Judge James W. Jardine (B.C. Provincial Court)
Robert Kroeker, B.A., LLB. (Saanich P.O.)
Darryl Plecas, Ed.D. (U.C.F.V.)
Judge K.J. Scherling (B.C. Provincial Court)
Harry Stevens, Ph.D. (Police Psychologist)
Sheila Sullivan, B.A., LLB. (Vancouver Police)
A. Jeffrey Wright, B.A., M.A., LLB. (RCMP)
Technical Assistant:

Robyn Towle, Police Academy (528-5779)
Circulation:

Dianne Joyal, Police Academy (528-5778)
Publication:

This Journal is published four times a year (January,
April, July, October). The annual subscription rate is
$15. Rates and specifications for advertising are available from the Technical Assistant. Articles appearing
herein do not necessarily express the views of the
Justice Institute, Editor, Associate Editor, Editorial
Boardortheauthor'sagencyoremployer. (ISSN:084082S4)

Contributors:

Submissions(750 - 1500 words) on topical operational issues are invited from police officers and individuals in associated professions or disciplines. Articles must be typewritten, double-spaced on letter
size paper, quotations must be indicated, and references fully cited in endnotes. Diskette submissions
in ASCII format (i.e. "Text Only") are preferred.
The Editor reserves the right to alter articles to conform with publication requirements. Contributions
not accepted for publication will not be returned to
the author unless accompanied by a stamped, selfaddressed envelope.
Reproduction:

All rights reserved. No part of this publication may
be reproduced in any form without prior written permission of the Editor or Associate Editor. A limited
licence to reproduce this publication for training or
education purposes is granted to police departments
and police officers.©1997.

investigative purposes a justifiable
exe rcise of a police officer's
common law powers. The inquiry
into the existence of an articulable
cause is only the first step in the
determination of whether the
detention was justified in the
totality of the circumstances and
consequently a lawful exercise of
the officer's common law
powers ... Without articu Iable
cause, no detention to investigate
the detainee for possible criminal
activity could be viewed as a
proper exercise of the common law
power.8
Ryan J .A.agreed with the above
test but cautioned that "We are dealing
here with on-the-street observations by
police officers who must act quickly"
and
in
such
cases,
"the
reasonableness of the officer's
decision to stop a person whom the
officer suspects is committing or has
just committed a crime does not turn
on the availability of less intrusive
investigatory techniques [because]
[s]uch a rule would unduly hamper the
ability of the of the police to make swift,
on-the-spot decisions."9
In the Ferris case, the accused was
the passenger in a moving vehicle that
displayed stolen plates and in all the
circumstances it was reasonable for
the police officers to "suspect" that the
occupants of the vehicle might be
engaged in some form of criminal
activity. As such, Ryan J.A. concluded
that it was "beyond dispute that the
police had articulable grounds to detain
the passengers to determine what, if
any, criminal activity was taking
place."10 On the facts, however, the
authors also believe that "reasonable
grounds" existed that the accused had
committed a criminal offence and she
could have been arrested and searched
as an incident of arrest, thereby
avoiding the entire issue of investigative
detention and articulable cause.

Correspondence:

All correspondence, subscriptions, payments,
changes of address, contributions, or inquiries may
be sent to: The Editor, Issues of Interest, JIBC
Police Academy, 715 McBride Blvd., New Westminster, B.C., V3L-5T4. Telephone (604) 5285779, Fax: (604) 52 8-5754 or E-mail
ptinsley@iibc.bc.ca

2

The Search

Since the investigative detention
was authorized/justified, the second
matter to be determined was whether
the search was justified. In other

words, is there a common law authority
to search incident to investigative
detention based on articulable cause?
In considering the concept of"stop and
frisk", Ryan J.A. relied on the United
States Supreme Court ("U.S.S.C.")
decision in Terry v. Ohio. 11 As Ryan
J.A. noted, the majority in Terry
"acknowledged the legitimate
government interest in effective crime
prevention and detection [and] ...
confirmed that where a police officer
observes unusual conduct that leads
the officer reasonably to conclude in
light of his or her experience that
criminal activity may be afoot, the
police officer may approach and briefly
detain the suspect to make reasonable
inquiries aimed at confirming or
dispelling the officer's suspicions."12 In
addition to the state interest in
investigating crime, there is also the
more pressing interest of protecting
police officers who are investigating
crime. As noted by the majority in
Teny.
The crux of this case, however, is
not the propriety of [the police
officer's] taking steps to investigate
petitioner's suspicious behaviour,
but rather, whether there was
justification for [the police officer's]
invasion ofTerry's personal security
by searching him for weapons in
the course of that investigation. We
are now concerned with more than
the governmental interest in
investigating crime; in addition,
there is the more immediate
interest of the police officer in
taking steps to assure himself that
the person with whom he is dealing
is not armed with a weapon that
could unexpectedly and fatally be
used against him. Certainly it
would be unreasonable to require
that police officers take
unnecessary risks in the
performance of their duties .... [W]e
cannot blind ourselves to the need
for law enforcement officers to
protect themselves and other
prospective victims of violence in
situations where they may lack
probable cause for an arrest. 13
In approving the stop and frisk
procedure for articulable cause, the

majority in Terry distinguished
searches incident to arrest as follows:
An arrest is a wholly different kind
of intrusion upon individual freedom
from a limited search for weapons,
and the interests each is designed
to serve are likewise quite different.
An arrest is the initial stage of a
criminal prosecution. It is intended
to vindicate society's interest in
having its laws obeyed, and it is
inevitably accompanied by future
interference with the individual's
freedom of movement, whether or
not trial or conviction ultimately
follows . The protective search for
weapons, on the other hand,
constitutes a brief, though far from
inconsiderable, intrusion upon the
sanctity of the person. It does not
follow that because an officer may
lawfully arrest a person only when
he is apprised of facts sufficient to
warrant a belief that the person has
committed or is committing a
crime, the officer is equally
unjustified, absent that kind of
evidence, in making any intrusions
short of an arrest. Moreover, a
perfectly reasonable apprehension
of danger may arise long before the
officer is possessed of adequate
information to justify taking a
person into custody for the purpose
of prosecuting him for a crime.14
In a powerful statement, Ryan J.A.,
after adopting the reasoning in Terry,
stated:
If the police have the duty to
determine whether a person is
engaged in crime or is about to be
engaged in crime they should not
be obliged to risk bodily harm to
do so. It is my view that the police
are entitled, if they are justified in
believing that the person stopped
is carrying a weapon, to search for
weapons as an incident to
detention. The question for the
court must be whether the search
was reasonably related in scope
to the circumstances which
justified the interference in the first
place. I have concluded that in
proper circumstance the police are
entitled to search for weapons as
an incident to an investigative stop.

The seriousness of the
circumstances which led to the
stop will govern the decision
whether to search at all, and if so,
the scope of the search that is
undertaken ... Questioning an
elderly shopper about a suspected
shoplifting would not ordinarily
require a search for weapons;
questioning someone after a bank
robbery might require a search of
the detainee and his or her
immediate surroundings. 15

Reasonableness of Law and
Conduct of the Search
In relation to the remaining two
elements for a valid search under s. 8
of the Charter, Ryan J .A observed that
having found that an investigative
detention and a search incidental to
that investigation meets the test of
reasonable necessity, it cannot be said
that the common law power is
unreasonable. Further, the scope and
manner of the search in this case was
not unreasonable.18

Scope of the Search

Further Application
In considering the scope of the
search, Ryan J.A. held:
The police were conducting a
spontaneous as opposed to a
planned investigation. Given those
circumstances it would be
unreasonable to require them to
determine with precision the least
intrusive manner of securing their
safety in the initial stages of their
investigation. As well, at some
point soon the detention would
come to an end and the pack
would be returned. The officers
were entitled to ensure that when
this was done they would not be
placing themselves in danger by
handling the respondent a
concealed weapon.
Finch J.A. noted that in
determining whether the search for
weapons was reasonably necessary,
"the police perception of reasonable
necessity depends very much on the
particular circumstances in which the
police officer finds himself."16 In this
case, the trial judge found that
because the accused was handcuffed
behind her back, the waist pack was
on the roof of the car and other officers
were present, there was no police or
public safety issue. However, Finch
J.A. commented that "[c]ommon
sense dictates that a prudent police
officer engaged in an investigative
detention will take care to protect
himself and others from harm from the
beginning of that detention to its
termination." 17 Thus, searching the
pouch before it was returned was
reasonable, although the officer did not
directly testify on this point.

More recently, in Yamanaka, supra,
McEachern C.J.A. (Cumming and
Finch J .A concurring) approved and
applied the principle of investigative
detention based on articulable cause.
In Yamanaka, two police officers
responded to several 911 complaints
of gunfire at 5:30 a.m. one morning.
The first officer arrived in the area and
spoke with two individuals standing
beside an older model vehicle. They
stated their vehicle had broken down
and backfired several times. A second
officer arrived and observed drywalling
equipment in the vehicle and found the
backfire explanation suspicious. The
second officer noted that the accused
was holding an athletic bag very
closely. The accused stated he was
an electrician and there were electrical
tools in the bag (which did not fit with
the kind of tools in the vehicle).
Concerned about weapons, the officer
asked to search the bag. The officer
found break-in instruments. The officer
also testified that the individuals did not
appear to belong in the neighbourhood.
The Court found:
In this case, the justification for a
lawful search is stronger than it was
in Ferris because the officer's
knowledge of complaints of
gunshots in the vicinity where the
appellant was found was good
reason to be concerned about his
own safety .... These facts ...
constituted articulable cause
temporarily to detain the appellant
for the purposes of investigating the
complaints that had been received
and to search the appellant for

3

weapons in th e course of that
investigation. 19
Conclusion

The foregoing cases may have
reversed the pendulum restricting police
powers to search in appropriate
situations. The concepts of articulable
cause and investigative detention import
significant principles from the United
States jurisprudence where it has
assisted police in their efforts to protect
themselves and the public.
However, the decisions dealing with
articulable cause tend to use imprecise
and contradictory terminology. As
p1evills¥nJle:ll:~{flJ~o there is some
ambiguity over exactly what threshold
is required to form articulable cause.
While it appears a "hunch" is insufficient
and "reasonable grounds" are not
necessary to form articulable cause,
"reasonable suspicion" (Doherty J.A.),

a reasonable conclusion (U.S.S.C.), or
"suspecting" (Ryan J.A.) that a person
may be involved in criminal activity have
been found to be sufficient. Officers
must be able to articulate, based on
the "totality of the circumstances," the
facts and reasons they relied upon to
formulate the need for an investigative
detention and/or search. It is clear that
police officers must receive instruction
regarding the application of these
principles. More importantly, where
reasonable grounds exist to effect an
arrest, it is our view that the search
incident to arrest authority will always
provide a more secure foundation upon
which to conduct business.
Endnotes:
1

· (15 June 1998), unreported, Van. Reg. No.
CA02194.
2
· (18 August 1998) unreported, Van. Reg. No.
CA023333; see also, R v. Davies (25 June
1998) unreported, Whitehorse Reg. No.

CA-97-YU382 (Y.T.C.A.) and R. v. Lal (Dec.
1996) unreported, Van. Reg. (B.C.S.C.).
3
· Hunter v. Southam, [1984] 2 S.C.R. 145;
see also, R. v. Collins, [1987] 1 S.C.R. 265
and R. v. Stillman, [1997] 1 S.C.R. 607.
4
· Supra, note 1 at para 27.
5
· (1993), 79. c.c.c. (3d) 482.
5
· Supra, note 1 at paras. 39 and 68.
1
· Ibid, Ryan J.A. at para. 37 quoting Doherty
J.A. at 501-2.
a. Ibid. at para 38 quoting Doherty J.A. at 503.
9
· Ibid, para. 39, adopting the comments of
the U.S.S.C. in U.S. v. Sako/ow, 104 L. Ed. 2d
1 (1989)atp.12.
10
· Ibid, para. 40.
11
· 20 L.Ed. 2d 889 (1968); see also, U.S. v.
Cortez 449 U.S. 411 (1981).
12
· Supra, note 1 at para. 49
13
· Ibid, para 50 quoting from pp. 907-8.
14
· Ibid, para. 51 quoting from p. 909.
15
· Ibid, paras. 53-4.
16
· Ibid, para. 71.
11
· Ibid, para 76.
18
· Ibid, paras 61-2.
19
· Supra, note 2 at paras. 13 and 15.
20
· Steven Ing, "Articulable Cause: Police Common Law Authority to Detain a Suspect Absent Reasonable Grounds for Arrest" (1997)
48:4 Issues of Interest 4.

Labour Relations In The RCMP
Brendan J. McKenna, BA

Introduction

1998 signals the 125t11 anniversary
of the RCMP. Historically, the RCMP
has been a rigid paramilitary force, and
as such, little thought was given to concepts like participatory management
with the rank-and-file. 1 In particular, for
more than 100 years, there was no
collective system in place to address
the concerns of the rank-and-file. In
fact, in 1918 an Order-in-Council was
signed prohibiting members of the
RCMP, under pain of dismissal, from
forming or becoming a member of any
organization to deal with employment
issues. That Order was only rescinded
in 1974, after the eruption of unrest
within the rank-and-file over pay and
working conditions.
In the face of embarrassing stories
like the 1972 Maclean's article by Jack
Ramsey, 2 a blistering indictment of
RCMP management, and the boiling
over of rank-and-file dissention in large
urban centres, Commissioner Nadon
was forced to try and address labour
and management issues. The result

4

was that RCMP members, without a
vote, had foisted upon them an internally organized, funded and management-controlled employee "representation" system to address their concerns. 3 This Division Staff Relations
Representative Program ("DSRRP")
was then, and still is, hailed by management and the government as an
"effective" tool to address employee
concerns. The mandate of the DSRRP
is contained within the Commissioner's
Standing Orders ("CSOs"), which are
enacted by the Commissioner's office. 4
RCMP members are not free to bargain with their employer, the federal
Treasury Board. Any communication
with Treasury Board relating to pay and
benefits for members is done through
the Commissioner.
For many, the illegitimacy of this
framework was highlighted recently
when the Commissioner, who is purportedly negotiating pay matters in the
best interests of members, received a
17% pay raise (i.e. over $20,000.00)
and other bonuses before the issue of
pay (which had been frozen for several

years) for the rank-and-file was settB::l: Despite the actual or perceived
conflicts of interest that exist in such
a situation, this process is still upheld
by the Commissioner and the federal
government as a viable and legitimate
way of conducting business on behalf
of members. Without collective bargaining and independent binding thirdparty review, the Commissioner essentially has unfettered control over
the members of the RCMP with regard to grievances and discipline, and
he is inappropriately responsible for
asserting pay and benefits before the
Treasury Board on behalf of the rankand-file.
The purpose of this article is twofold. First, I will provide some examples of why the current RCMP labour
relations regime can no longer be supported. Second, I will outline the appeal of S/Sgt. Delisle to the Supreme
Court of Canada to have the various
legislative provisions that currently
prohibit RCMP members from forming an association struck down as unconstitutional.

The Past and Present
There is considerable evidence that
the current RCMP labour relations regime can no longer be sustained. In
1974, as result of widespread labour
unrest within the RCMP, the Marin Commission was appointed to review matters relating to the public complaints
process, grievances and internal discipline in the RCMP. 6 Among other
things, the Marin Commission determined that the RCMP discipline and
management system was basically
punitive in nature, and was subject to
considerable formal and informal abuse
by commissioned officers. The Marin
Commission recommended a remedial
discipline process, and to some degree, their recommendations in that
regard have been implemented. The
Marin Commission also pointed out the
apparent conflict that exists when the
RCMP Commissioner represents members before Treasury Board on pay and
benefit issues. 7
Approximately ten years later, when
some of the recommendations of the
Marin Commission were finally legislated, two bodies were created to oversee internal accountability matters: the
Public Complaints Commission
("PCC") and the External Review Committee ("ERC"). The ERC has limited
authority to review certain types of
grievances and discipline matters. It
also has the mandate to make recommendations to the Commissioner, but
those recommendations are not binding. It is self-evident that any oversight
body that can only make recommendations, rather than binding decisions,
leaves the final decision in the hands
of the very management that made the
decision in the first place. Recent data
regarding ERC reviews suggests that
in 27.5% of internal discipline cases
the Commissioner has disagreed with
and/or rejected the findings of the
ERC. 8
A clear example of the limited authority the ERC has over RCMP management is provided by the case of Cpl.
''.4" v. Appropriate Officer "B". 9 Section 40( 1) of the RCMP Act10 empowers the Force to initiate internal Code
of Conduct investigations. Section
40(2) requires members to answer

questions relating to the investigation, even though they may incriminate the member or subject the member to a penalty (i.e. compelled, ordered, required or duty statements).
However, s. 40(3) precludes the admission of answers in any criminal,
civil or administrative proceeding. In
Cpl.
the member answered questions during an internal investigation.
The member specifically objected to
answering all but three questions
posed by the investigator. At the internal Adjudication Board hearing,
the RCMP attempted to enter into
evidence the answers to the three
questions Cpl. "A" did not object to
answering. The issue was whether
the answers were inadmissible because of subsection (3).
A body of case law has developed
over the years dealing with this issue. For example, the decision of the
ERC in Special Cst. ''.4 "clearly stated
that:
The member is not compelled in
any way to object to answering
to invoke the protection of the
Act. Just as section 13 of the
Charter, subsection 40(3) automatically protects a person compelled by law to make incriminating statements. 11 (Emphasis
added.)
The internal Adjudication Board
in the Cpl. ''.4" case properly ruled
that "the answers to questions were
automatically protected bys. 40(3),
regardless of whether he objected or
was ordered to answer." 12
The Adjudication Board's decision
to exclude Cpl. "A's" answers was
appealed to the ERC, which, after a
detailed analysis, upheld the Board's
decision. However, on further review
by the RCMP Commissioner, the
findings and recommendations of the
ERC were rejected, as well as previous rulings of the Ontario Provincial
Court in R. v. Radeschi, 13 the New
Brunswick Court of Queen's Bench
in Murphyv. Keating, 14 and the B.C.
Court of Appeal in Gustar v.
Wadden, 15 that directly or indirectly
held that an objection/order is not required to obtain the protection of s.
40 (i.e. the protection is automatic).
Aside from the foregoing cases

·w:

dealing with ordered statements, the
Commissioner was also fully aware of
a review undertaken by Rene J. Marin,
on behalf of the RCMP, of s. 40 statements.16 The Marin Report confirms that
s. 40 statements should be automatically protected. However, the Commissioner's refusal to follow these authorities unavoidably raises questions about
leaving the final decision on internal matters in the hands of the Commissioner.
Despite the fundamental importance
of this case to all members, the
DSRRs, who are internally "elected" to
represent members, refused to financially assist Cpl. "A" with an application for judicial review before the Federal Court. 17 The case was ultimately
settled through an Alternate Dispute
Resolution process. The terms of the
settlement are sealed, however, the
Commissioner's decision remains unchallenged.
The Cpl. ''.4" case is not the only
example where the protections offered
by statute have apparently been ignored
by senior executive of the RCMP. Members in Quebec in the Gingras case 18
had to pursue a lengthy and costly legal battle to get the Commissioner to
pay a bilingual bonus to eligible members, even though such bonuses were
a mandated federal government program. It is clear in the Gingras decision
tr.at the Commissioner unilaterally arbitrarily and without authority decided
not to pay the bilingual bonus to eligible members. The RCMP has now had
to retroactively pay millions of dollars in
bilingual bonuses with interest.
Even more interestingly, after the
Gingras decision, senior executive of
the RCMP proposed/supported dramatic
changes to the existing pieces of legislation governing the Force (without prior
consultation with DSRRs), claiming that
the Commissioner's authority was
somehow fettered by the findings in
Gingras. The government responded by
introducing Bill C-5819 into the House
of Commons in November of 1994.
Among other things, this Bill proposed
to remove RCMP members from the
statutory protection for occupational
health and safety provided by the
Canada Labour Code ("CLC''). No rational explanation has ever been provided on how the issue of bilingual bo-

5

nuses and occupational health and
safety were connected under Gingras.
In any event, the Commissioner "promised" members that he would provide
in the form of policy and/or CSOs new
occupational health and safety provisions, "equal to or better" than those
provided in the CLC. 20 However, this
promise glosses over a significant
point. The CLC empowers Labour
Canada, a body independent from the
RCMP, to make binding orders, review,
investigate and lay charges in relation
to occupational health and safety violations. In other words, the CLC provides an independent statutory regime
for compliance, enforcement and prosecution that is not operated by the employer/Commissioner.
Fortunately, in response to Bill C58, neophyte regional RCMP Associations (non-profit organizations that are
not part of the DSRRP), with the assistance of the Canadian Police Association, successfully organized a series of responses that identified the
apparent discontinuity between the
Gingras case and the broad statutory
amendments supported by RCMP executive. To date, it has never been proi:r
erty explained how, according to the
Commissioner, the Gingras case
"muddied the waters." In fact, the
Gingras case, after years of opposition by the RCMP, clarified that the
Commissioner cannot act outside his
authority or contrary to the law. For
many, it is apparent that the senior
executive of the RCMP, through Bill C58, engaged in a blatant attempt to
consolidate authority in the Commissioner's office, by removing, among
other things, one more form of independent, binding oversight of management's actions.
More recently, the method by which
the RCMP's Alternate Dispute Resolution system ("ADR") was developed
and implemented undermined the credibility of the ERC. The new ADR l?YStem was developed in response to a
statutorily based internal grievance
process that was burdened by bureaucratic obstacles, excessive time delays (i.e. it can takes years to address
even a minor grievance) and a lack of
confidence crisis within the rank-andfile. While the development of an ADR

6

system is commendable, the RCMP
retained the services of a company led
by the then acting Chair of the ERC to
conduct the ADR project. 21 It apparently never occurred to anyone in the
decision-making process that having a
contract with the RCMP and holding a
quasi-judicial position as the acting
Chair of the ERC may create actual or
perceived issues of bias for members.
In addition, an RCMP association from
Quebec requested an investigation of
the Chair of the RCMP Pay Council (a
recently formed and internally funded
in-house body that makes recommendations, which are not necessarily disclosed to members, to the Commissioner on pay and benefits) on the basis of reliable information that the Chair
"has officially taken sides against the
formation of a union, and collective bargaining rights within the RCMP ... "22
Even more disturbing is a recent
internal discipline case dealing with
regulation 57 of the RCMP Regulations,
which prohibits members of the force
from holding public office or engaging
in any political activity. S/Sgt. Delisle
(a well known RCMP union activist),
was subject to suspension without pay
for a period of 1 .5 years for being
elected the unpaid mayor of a village
near Montreal, which is not policed by
the RCMP. Delisle has also been a
DSRR for the past 17 years. Prior to
the election, he notified the Commanding Officer of Quebec that he was running for election, and was given permission to run (at the same time, a
Commissioned Officer held an elected
position as a town councillor in a small
town close to Ottawa, and more than
one member in Alberta held an elected
position 23 ).
Only days prior to the election,
Delisle was ordered to withdraw as a
candidate. He refused and was immediately suspended. At the time of suspension, Delisle attempted to file a
grieveance. The Commanding Officer
refused to accept the grievance, claiming that it was not a grievable decision.
The suspension of S/Sgt. Delisle without pay was in blatant violation of
RCMP policy and the Commissioner's
publicly stated position on when a
member will be suspended without pay;
i.e. a) imprisonment, b) reprehensible

conduct, c) reasonable and probable
grounds to believe member has committed a criminal offence, d) absent
without authority, and e) refused/failed
to reportforduty.24 S/St. Delisle eventually appeared before the Arbitration
Board of Human Resources Developm enteanada f.e. unemployment insurance), which found that " ...the real
motive for the suspension is more the
fact that Mr. Delisle wanted to establish an RCMPolice officers assocation
than the fact he was running for
mayor."25 Delisle's only form of redress was to engage in a Federal
Court action. He has subsequently
been reinstated, all backwages have
been paid to him, and he continues
with a civil lawsuit against the RCMP
for $640,000.00 to cover his legal
costs, as well as specified, general
and punitive damages.
In the last few weeks, regulation
57 has been struck down by the Quebec Superior Court as excessive in its
restrictions on members rights. 26 This
is not surprising since this same conclusion was reached more than a year
ago by a parliamentary committee
which specifically reviews regulations.
Despite communicating the committee's findings to the Commissioner regarding regulation 57, the RCMP still
considered it necessary to fight
Delisle's case before the Quebec
courts.
Similarly disturbing is the occasion
when S/Sgt. Delisle, as a DSRR, was
expelled from DSRR caucus meetings
because the other DSRRs disagreed
with his position on unionization. S/
Sgt. Delisle ultimately obtained an
interim injunction from the Federal
Court.27 Unable to silence S/Sgt.
Delisle, the response of the Commissioner was to enact CSOs prohibiting
DSRRs from engaging in "activities
that promote alternate programs in
conflict with the non-union status of
the DSRRP."28 It was not long before
two DSRRs from British Columbia filed
a complaint against S/Sgt. Delisle after he attended the inaugral meeting
of a British Columbia RCMP association, alleging that he was supporting
another form of employee representation contrary to the CSOs. 29 Clearly,
open communication, freedom of ex-

pression, opinion and association and
other democratic principles are not
deeply rooted in the DSRRP or the
RCMP.
It is apparent that even in the face
of unambiguous jurisprudence, the
Commissioner is often intransigent in
recognizing the rights of RCMP members in relation to internal matters. The
apparently cavalier disregard for the interests of members demonstrated by
the Cpl. ''A"case, Gingras case (and
its aftermath), the Delisle cases and
the inherent limitations of the DSRRP
and ERC process, amply demonstrate
the precarious, inequitable and onesided nature of labour relations in the
RCMP.
The Road to Full Employee Rights
Despite the fact that the current
statutory framework governing the
RCMP does not allow or expressly
excludes RCMP members from forming an employee association, several
non-profit associations have been
formed in an attempt to provide an alternative means to deal with issues
affecting RCMP members. There is no
question that the current Liberal Government (and RCMP executive) are
adamantly opposed to any notion of
collective bargaining in the RCMP. This
is so even in the face of the recent recommendations of the federal government's own task force on labour issues
that unionization be permitted in the
RCMP. 30 The Sims Task Force received submissions from four regional
RCMP associations, the Canadian
Police Association and the Ontario
Provincial Police Association and observed that:
Submissions [of the above-noted
associations] ... requested that
Part 1 of the Code cover the
R.C.M.P. so that its members
could engage in collective bargaining. They did not seek the right to
strike, accepting arbitration as the
appropriate dispute resolution
mechanism .... Much of the
R.C.M.P.'s modern-day activities
consist of contract policing for
eight provinces and approximately
200 Municipalities. To a great extent, the duties and responsibili-

ties of the R.C.M .P. and their provincial counterparts are indistinguishable ... Members of a police
force could be granted access to
collective bargaining without denying the need for operational control and without jeopardizing the
public interest. 31 (Emphasis
added)
The government rejected any consideration of such a move. As a result, it appears that members will once
again have to take the judicial road to
secure some leadership and binding
external direction on internal matters.
This trip had already been started.
On November 28, 1989, the Quebec
Superior Court rejected S/Sgt.
Delisle's legal challenge that the provisions preventing RCMP members
from forming a union are invalid. The
decision of the Superior Court was
appealed by Delisle to the Quebec
Court of Appeal, and that appeal was
dismissed January 29, 1997. In a
strong dissent, Baudouin J.A. observed:
Legislature has implemented, as
a substitute [for collective bargaining] a system of internal representation, which has no real power in
actual practice, as management
exercises absolute and unquestionable authority over the members. The situation therefore represents a notable exception to the
fundamental freedom universally
recognized in all free and democratic societies to unionize and
hence be able to negotiate one's
working conditions without hindrance ..... Indeed, at the present
time the only group structure that
they may have [DSRRs] is the one
imposed by law, a structure that
is emptied of all effective power
and, in the final analysis, wholly
governed by management. 32
This case has been appealed to
the Supreme Court of Canada and will
be argued in the fall of 1998.33
The factum filed on behalf of Delisle
asserts four basic constitutional arguments in support of striking down the
provisions that deny members the right
to collectively bargain. Delisle argues
that his/members' Charter rights of 1)
freedom of association, 2) freedom of

expression, 3) right to equality have
been breached, and 4) that the impugned provisions are not reasonable
limits prescribed by law as demonstrably justified in a free and democratic
society.
First, Delisle argues that the impugned legislative provisions deny him
the fundamental right to form a union
of his choosing and thus violates his
very basic right to freedom of association. 34 The argument surrounding freedom of association deals with Delisle's
forced obligation to participate in an
employer-dominated system (i.e. the
DSSRP) which, aside from muzzling
dissent, stifles his right to associate
freely and institutionalizes the employer's absolute dominance. In effect, the
government has legislated an "unfair
labour practice" by exempting itself
from the laws which all other employers must comply with. The DSRRP and
related statutory provisions prevent
members from holding a free vote about
whether they wish to participate in this
system.
Second, it is Delisle's submission
that the impugned provisions deny him
the fundamental right to express himself either a) by voting on whether or
not he wants a union, b) through the
actual formation of a union of his own
choosing, or c) ultimately in expressing his solidarity with other members
of the RCMP 35· Delisle submits that it
is self-evident that ''the right to associate is essential to securing an effective employee voice, [and] the denial
of that right has the effect of denying
freedom of expression since access
to that effective employee voice is refused."36
Third, Delisle argues that the impugned legislative provisions deny his
right to equality under s. 15 of the Charter. 37 It is Delisle's submission that his
status and obligations as police officer
extend beyond the workplace, and in
effect, have become a personal characteristic. Further, RCMP members are
isolated and insular, and based on past
and current denials of fundamental
rights by the RCMP (examples are
detailed in the factum) they are a vulnerable group in need of protection. 38
Last, Delisle submits that the infringement of his constitutional rights

7

is not justified under s. 1 of the Charterbecause 1) the objective of preventing a union in the RCMP does not respond to any "pressing or substantial
concern" in a democratic society; rather
it perpetuates a power imbalance
wherein the Commissioner has absolute power and control over members'
rights; 2) should the objective of preventing a union in the RCMP respond
to pressing concerns that the RCMP
could become subject to an illegal work
stoppage (an argument Delisle and
every other police association does not
concede), no "rational connection" has
been demonstrated between the absolute denial of the right to form a union, or even to express oneself on this
point, and the requirement for uninterrupted law enforcement service; 3) a
proper balance has not been struck
between the rights of freedom of association and expression and the right
to equality under the law and the absolute prohibition to unionize and the
absolute power of the RCMP Commissioner; and 4) there is no "proportionality'' between the deleterious effects
of the prohition or absolute denial of
the right to form a union and the objective of uninterrupted police services. 39
At bottom, the government/
RCMP's alleged basis for denying the
right to form a union is the apprehension of the potential for a possible interruption of police service in the event
of a potential unresolved labour dispute
and the perception of a potential conflict of loyalty. As Delisle notes, among
other things, a) it has never been established that such an occurrence is
likely (rather the facts indicate the opposite), b) the evidence indicates that
RCMP members are loyal and law
abiding, c) the loyalty argument is
based on the premise that RCMP
members are unable to appreciate the
difference between their rights as employees and their professional responsibilities, which is "patronizing", "insulting" and unsupported by evidence, d)
numerous other emergency services
occupations are permitted to unionize,
e) the right to strike is not sought by
RCMP members and/or other alternatives exist to prevent interruption of
services (e.g. arbitration), and f) pro-

8

viding basic rights to members is more
conducive to civil order and respect for
the law than denying rights enjoyed
by other employees.

Conclusion
Given the RCMP labour relations
record provided in this paper, and the
disposition of the Supreme Court of
Canada with regard to basic constitutional rights, there is every possibility
that the legislative provisions at issue
will be found unconstitutional. Should
that happen, RCMP members will at
least enjoy the right to choose whether
or not they want to collectively bargain
and have independent employee representation. Even if the DSRRP initially
survives, having the right to dispose of
that program and adopt a new employee relations process whenever the
members choose is a very powerful vehicle to ensure management truly
deals with employee issues on a level
playing field. However, given the Commissioner's purported commitment to
empowerment, consultation, and the
RCMP's stated mission, vision and
values, it should not require direction
from a court to bring RCMP labour relations into the 20th century, as it prepares to exit for the new millennium.

Endnotes:
1. For an excellent early history of the RCMP,
see R.C. Macleod, The NWMP and Law
Enforcement, 1873-1905 (Toronto: Univ. of
Toronto Press, 1976).
2. Jack Ramsey, "My Case Against the RCMP"
(July 1972) MacLean's at 19-34.
3. See, Gary E. Reed, Organizational Change
In The RCMP: A Longitudinal Study
(unpublished M.A. thesis, S.F.U., Political
Science, 1984) and Fred Hardy, ''The R.C.M.P.
Staff Relations Program" (Winter 1978), British
Columbia Police Journal 8.
4. See s. 96 of the Royal Canadian Mounted
Police Regulations, 1988 (SOR/88-361) as
amended and the Commissioner's Standing
(Division
Staff
Relations
Orders
Representative Program), not published,
signed 9 June 1993.
5. Lindsey Kines, "Raises for RCMP face final
hurdle" (20 March 1998) The Vancouver Sun
A1-2.
6. Canada (Chairman: Rene Marin), Report of
the Commission of Inquiry Relating to Public
Complaints, Internal Disclpllne and
Grievance Procedure Within the Royal
Canadian Mounted Police (Ottawa:

Information Canada, 1976) at 3 ("Marin
Commission").
7. Supra, Reed, note 3 and ibid at 193.
8. Craig S. MacMillan, "Member Beware: The
Case for Binding External Review of RCMP
Internal Matters" (1998) 4:1 Action 5 at 7.
9. See ERC File No. 2400-95-006.
10. Royal Canadian Mounted Police Act,
R.S.C. 1985, c. R-10, as amended.
11. See, ERC File No. 2200-90-005 (D-16) cited
also as 3 A.O. (2d) 168 at 189.
12. Supra, note 9.
13. (Unreported), 1 Sept. 1994 (Cornwall).
14. (1989), 96 N.B.R. (2d) 412.
15. (1992), 74 B.C.L.R. (2d) 184.
16. See, Rene J. Marin, Reference: Section
40 RCMP Act Ordered Statements (1996)
("Marin Report") and A/Commr. D.G. Cleveland,
Director of Personnel, File G117-15-29,
correspondence dated Feb 17, 1997.
17. Rae v. JPR Murray and/or C. Allen in his
capacity as Commissioner of the RCMP, Van.
Fed. Ct. Reg. No. T-2684-967.
18. Gingras v. Canada (1994), 165 N.R. 101
(Fed. C.A.).
19. An Act to amend the Public Service Staff
Relations Act and the Royal Canadian
Mounted Police Act.
20. Commissioner's Broadcast, "Bill C-58" (19
Jan. 1995) at 5.
21. Rebecca Johnson, "ADA Goes National"
(May 1996), Pony Express at 12.
22. Pierre Vincent, ''The RCMP Associations
Request the Dismissal of Mr. Paul Lordon"
(1998), 4:1 Action 1.
23. Delisle v. A.G. Canada (2 Sept. 98)
Montreal Reg. SOO-OS-028290-979 (Que. S.C.)
24. See, RCMP Admin. Man. Xll.5.d.3. and "C"
Division Bulletin on Staff Relations within the
RCMP, "Suspension Without Pay" (Sept. 1996),
Contrepoids 1-3.
25. Ibid (unofficial translation); see also,
Canadian Press, "Mountie-made-mayor
disputes reason behind suspension from
force" (10 Nov. 1995) Vancouver Sun.
26. Supra, note 23
27. Delisle v. RCMP Commissioner et al.
(1991), 39 F.T.R. 217 (T.D.).
28. Supra, note 4.
29. "C" Division Members' Association,
"Readers Coroner - Complaint Regarding
Alleged Violation of Commissioner's Standing
Orders (1995), Les Affaires De 'Association
La Division "C" at 2.
30. Canada (Andrew Sims, Chair), Seeking A
Balance: Review of Part 1 of the Canada
Labour Code (Canada: Min. Of Public Works
and Government Services, 1995) ("Sims Task
Force").
31. Ibid at 49-50.
32. Delisle v. Deputy Attorney General of
Canada, Solicitor General of Canad and the
Commissioner of the RCMP (29 Jan. 1997)
Montreal Reg. 500-09-001747-898 at 2 and 6.
33. Gaetan Delisle v. Attorney General of
canada, S.C.C. Reg. No. 25926.
34. Ibid.
35. Ibid. Appellant's Factum at 9.
36. Ibid. at 22.
37. Ibid.
38. Ibid. at 30.
39. Ibid. at 10.