Screenshot of Jane Gerster's investigation, RCMP officer accused of sexual assault has been on paid leave for 16 years, on Vice World News.

How an oversight in the RCMP Act keeps justice suspended and truths hidden

Jane Gerster spent two years investigating a justice system misconduct case. While parties on all sides wanted to lift a 14-year old publication ban, FOIs revealed the RCMP didn’t know how and a judicial review showed the federal courts couldn’t Continue Reading How an oversight in the RCMP Act keeps justice suspended and truths hidden

In 2000, RCMP Const. Justin Harris crossed paths with a young Indigenous girl I can only identify by her initials: C.C. As a result, Harris would later be suspended and subjected to a disciplinary hearing convened by the RCMP’s adjudication board. The board imposed a publication ban.

Sixteen years later, C.C. has died from natural causes, her father wants to lift the publication ban, Harris wants to lift the publication ban, and the federal government has agreed to do so. 

Despite the consensus, the ban remains firmly in place.

“This is a rare, unique circumstance,” said David Milward, a law professor at the University of Victoria.

After more than two years of attempting to disentangle the RCMP bureaucracy that keeps C.C. anonymous and prevents broadcast of Harris’s image, RCMP officer accused of sexual assault has been on paid leave for 16 years was published on Wednesday, May 5 by Vice World News.

Back in 2004, Judge David Ramsay pleaded guilty to four counts of sexual abuse — his crimes considered among the worst perpetrated by a sitting Canadian judge. And yet, when his victims first told police about his crimes, some — including C.C. —  also alleged other community leaders, including Mounties, had similarly abused them. Harris was among the accused. 

Prosecutors never recommended criminal charges, but the force suspended him and brought him before its conduct board. The case was tossed on a technicality and the RCMP dropped its appeal after C.C.’s death. 

But Harris, who expected to return to work, never did. He says the force blocked his return in a manner that led to psychological issues rendering him unfit for duty. In 2008, he filed a lawsuit against the force, which has since ground to a halt as the RCMP attempted to medically discharge him — an ongoing, years-long process.

The result? Harris has been on paid leave for nearly 17 years. Neither he nor C.C.’s family feel like justice has been served.

My involvement started back in January 2019, when Harris emailed me after my series For the Good of the Force was published on Global News. He was ready to speak publicly and thought I might be a good reporter to approach because my reporting tended to focus on systemic RCMP issues rather than individual misdeeds. 

We went back and forth for a while: him feeling me out, and me researching everything I could about his case and Ramsay, and about the RCMP’s relationship with Indigenous people — in particular those living in and around Prince George in northern British Columbia.

Harris didn’t tell me the publication ban was in place because he didn’t think it still was. After all, the Vancouver Sun published his head shot on July 10, 2007 after the disciplinary hearing’s conclusion. 

C.C.’s father also had no idea. When I first reached out to him, he had been surprised to hear Harris was still employed by the RCMP. Then, he had been adamant that if the public was going to read about Harris again, this time they would get to know C.C. too. The publication ban caught him off guard, but right from the beginning he said he would do what he could to lift it.

I spent June 2019 trying to elicit explanations from the RCMP before an access to information request laid bare why the force’s spokespeople were being so cagey: they didn’t actually know the answer.

Initially, they intended to tell me the RCMP doesn’t have the authority to impose a publication ban and that I should check with the courts. That was then struck out in favour of a line saying the ban was imposed in accordance with the 2006 version of the RCMP Act. 

By the middle of June they were clearly frustrated by my requests for clarification.

“It is our opinion that these extracts provide you with the information you require. It is not for the RCMP to provide you with legal advice,” wrote one spokesperson on June 18.

However, just the day before he’d gone back and forth with an RCMP colleague over whether the force had, in fact, provided me with the requested information. According to his own email, released via access to information, they hadn’t.

His colleague wrote to him: “I’d argue we are not clearly answering the question. But it’s supported by the Commissioner’s standing orders. Thoughts?”

To that, the spokesperson replied, “You’re right – it doesn’t answer the question … If this is the best we can do, I’ll send it, but our clients should be aware that it will prompt potentially negative mentions in a conduct story where our process appears less than clear.”

Once Global News lawyers took over the correspondence, the back-and-forth escalated until a lawyer for the Justice Department told Global that the force “is not in a position to consent to the lifting of the adjudication board publication bans.” No reason was given.

This convoluted back-and-forth is a typical Mountie move, according to Rob Gordon, a criminologist at Simon Fraser University who frequently comments on RCMP issues:

“This stuff is unfolding and when they get to a point where they can’t conceal it … like any good organization what they’ll do is say, ‘sorry we can’t help you’ and walk away from it in the hopes that Jane Gerster and her gang of media supporters will give up as well.”

It’s a sort of grinding down of the people pushing for answers in the hopes they’ll get tired and quit, a strategy Gordon says works because “that’s precisely what happens in many cases.”

This issue might feel overly technical and not all that critical given this piece was ultimately still published by Vice World News. But the reality is that the portion of this publication ban that protects the identity of C.C. is harmful to her family, who fought successfully after her death to have the criminal publication ban on her name lifted so that they could reclaim it and tell their side of the story.

At their core, publication bans are about privacy, but you have to ask who is served by that privacy now, said Rebecca Johnson, a law professor and associate director of the Indigenous Law Research Unit at the University of Victoria.

“Nothing is protected here, in this way, except for the interest of the powerful in maintaining secrecy,” she said.

C.C.’s case reminds Johnson of the Truth and Reconciliation Commision, tasked to inform Canadians about what happened in the horrific residential school system but then forced to fight the federal government in court for access to the documents necessary to do its job. 

“It’s absolutely a pattern,” Johnson says. “For women, and very much for Indigenous women in Canada, privacy has rarely been used in a way that’s in service to their safety and so when women themselves — when the families themselves — say they want visibility, then we should trust that that is what best serves them.”

To facilitate both Harris and C.C.’s father’s desire to share their stories unrestricted, Global News filed an application for judicial review at Federal Court in January 2020. Global News was not successful in lifting the ban, which doesn’t surprise Milward given the request falls into one of the court’s gaps: it has no provision to make the consent order needed to dispense with the original publication ban.

However, the legal filling did at least prove successful in exposing the real reason why the Mounties seemed so reticent to outline the process to lift the ban: there is no process.

The reality is that neither Harris nor C.C.’s family can simply ask the RCMP to lift the ban. When revising the RCMP Act in 2014, the federal government did not account for the potential need to review or revisit past decisions when it created a conduct board replacing the adjudication board that Harris appeared before 16 years earlier. 

Except, to figure that out, to have the government say it so plainly, Global News had to take the RCMP to Federal Court — an illuminating, but ultimately unsuccessful endeavour. 

As a reporter whose journalism has focused largely on structural issues within the RCMP, I see this deficient process as yet another example of how the Mounties’ bureaucracy serves to obscure the public’s ability to understand how our national police force handles complex, sensitive matters. It is yet another example of how the federal government’s attempts to modernize the force only seem to have exacerbated the concerns of the public and its own members. 

The reality is that the number of Mounties who have, like Harris, been on paid sick leave for four years or longer has doubled in the last two years, from eight to 17. That’s despite the 2014 modernization efforts the force touted in response to questions I asked about Harris’s case. 

The RCMP calls it “off-duty sick” but in 2017 a force psychologist told the Civilian Review and Complaints Commission that it would be better called “off-duty mad” in recognition of how many people are on leave because of harassment or bullying by their own colleagues.

As the legal maxim goes, justice delayed is justice denied. Delays are a well documented problem for the RCMP. The commissioner’s review and release of CRCC reports is now so long that the average wait time is 538 days. Between 2016 and 2019, the number of access to information requests unanswered for a year grew by more than 1,000 per cent.

Instead of saying “we do not know, but we will find out” when I asked about the publication ban, the RCMP hid behind the pretense that I was asking for legal advice. I wasn’t, although I did once — in a moment of frustration — ask them what power the RCMP had to enforce violations of their own publication ban, since they didn’t appear to understand their own legal process.

Their unwillingness to say “we do not know, but we will find out,” means C.C.’s family — who successfully fought to reclaim her story after her death — is left feeling further victimized by the RCMP’s actions. This despite the fact the commissioner has spent the better part of a year now telling the public that the force is working to do better.

The decision is a deep disappointment for C.C.’s father, who already successfully fought in court to lift the criminal publication ban on his daughter’s name so that her story could be known.

“She’s a victim all over again,” he says.