Royal Canadian Mounted Police Act (R.S.C., 1985, c. R-10)

Marginal note:Education and information

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

Information Provisions

Marginal note:Right of access

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

• Marginal note:Access to records

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

• Marginal note:Identification

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

• Marginal note:Application

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

Definition of privileged information

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

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

  • (b) information the disclosure of which is described in subsection 11(1) of the Witness Protection Program Act;

  • (c) [Repealed, 2013, c. 29, s. 23]

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

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

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

• Marginal note:Access to privileged information

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

• Marginal note:Access to records

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

• Marginal note:Refusal and reasons

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

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

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

• Marginal note:Memorandum of understanding

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

• Marginal note:Regulations

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

• Marginal note:Application

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

Marginal note:Former judge or other individual

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

• Marginal note:Notice of appointment

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

• Marginal note:Former judge or other individual to have access

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

• Marginal note:Observations

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

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

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

• Marginal note:Prohibition

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

• Marginal note:Factors to consider

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

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

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

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

• Marginal note:Time limit

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

• Marginal note:Confidentiality

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

• Marginal note:Immunity and no summons

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

• Marginal note:Observations to be taken into account

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

• Marginal note:Restriction

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

• Marginal note:Regulations

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

Marginal note:Exceptions

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

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

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

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

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

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

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

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

• Marginal note:Exception — confidences

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

Marginal note:Use of privileged information

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

Marginal note:Protection of information

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

• Marginal note:Consultation and approval

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

• Marginal note:Time limit

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

• Marginal note:Regulations

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

• Marginal note:Conflict or inconsistency

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

• Marginal note:Duty to comply with regulations

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

Marginal note:Security requirements

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

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

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

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

• Marginal note:Regulations

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

Marginal note:Safeguards — third party

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

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

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

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

• Marginal note:Time limit

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

• Marginal note:Regulations

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

• Marginal note:Duties to comply

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