APEC – Commission Interim Report
This aspect of Jaggi Singh's complaint is that he was arrested on an outstanding warrant based on a spurious charge; the manner of the arrest was inappropriate in the circumstances; the timing of the arrest was calculated to prevent him from attending protests on November 25; and the bail conditions sought were overly restrictive.
17.1. Overview
Jaggi Singh was prominent in anti-APEC activities on campus in the days and weeks leading up to the November 25 leaders' meeting at UBC. After an incident on November 7, he was charged with assaulting a campus security guard and a warrant was issued for his arrest. He was arrested by four police officers on campus on November 24 and released only after undertaking to the court not to be found on the University Endowment Lands, which of course includes the UBC campus.
17.2. The November 7 Incident
Mr. Singh was one of a group of APEC Alert members participating in anti-APEC activities around noon on November 7 at UBC. These activities included writing with washable chalk on the windows of Norman Mackenzie House. Outside the house, Mr. Singh confronted the person he later learned to be Dave Goodrich, an assistant patrol manager for UBC Campus Security. Mr. Singh said he asked for Mr. Goodrich's identification but was not shown it.
Mr. Singh's version of what happened next is that he stood a couple of feet behind Mr. Goodrich and spoke through a megaphone. Mr. Goodrich threatened to punch him and Mr. Singh repeated the threat to the crowd, using the megaphone. He said he is experienced in the use of megaphones and did not intend to cause Mr. Goodrich any injury.
Mr. Goodrich's version of events is that he was watching protesters at the rear of the house when Mr. Singh approached him and demanded his identification. Mr. Singh then walked behind him and, at his right side, screamed something through a bullhorn into his right ear. Mr. Goodrich said he flinched and told Mr. Singh that if he did that again he would rip his arm off. Mr. Singh smiled to the protesters and yelled through the bullhorn that he was being threatened.
Mr. Goodrich was firm in his belief that Mr. Singh had intentionally "screamed something into a bullhorn" into his ear.
Mr. Singh was equally firm in his belief that he never aimed his megaphone directly at Mr. Goodrich's ear. On November 7, Mr. Singh did not know Mr. Goodrich either by name or sight. The first time Mr. Singh heard of the allegation that someone had been physically injured by his actions on that day was when he was arrested on November 24 as he walked across the UBC campus.
17.3. APEC Alert and Mr. Singh
Mr. Singh described himself as an organizer and activist with APEC Alert. He denied that he played a leadership role but there is no doubt that he was seen as a leader by others both inside and outside the group. According to witness Craig Jones: "[c]ertainly Jaggi Singh had been the most vocal of the APEC Alert representatives."
Mr. Singh had recently completed two years of study at UBC but was not attending UBC in the fall of 1997. He testified that APEC Alert had come together in about January of 1997 when it became known that UBC would be the site of the APEC leaders' meeting on November 25. Its purpose was to determine how the university community could respond and to develop a strategy for showing opposition to APEC. Tactics included films and forums to raise awareness on campus and other activities "right up to non-violent civil disobedience and direct action."
When asked whether violence was part of APEC Alert's fundamental philosophy, Mr. Singh responded:
Absolutely not. It was actually the opposite. There are two things--I mean APEC Alert was a pretty defuse group. There were a lot of different people involved. People who considered themselves liberal party supporters to people who considered themselves anarchists and communists. But our basis of unity essentially, was based on two things, the first was, an opposition to APEC, a clear opposition to APEC because there were--there were some organizations that felt, well, some parts of APEC are good, some are bad but we felt the APEC agenda, the agenda represented was wrong and was to be opposed. So, we opposed APEC. And the second basis of unity was a commitment to nonviolence; not necessarily a commitment to nonviolence per se, but a commitment to engaging in nonviolent civil disobedience as a tactic, amongst other tactics.
APEC Alert's protest strategy comprised three stages:
- "Refuse APEC" from September to November 17. Among other things, this stage involved regular meetings; road hockey games on the driveway of Norman Mackenzie House; and establishing an "APEC-free Zone" on campus by painting lines enclosing an ever-increasing area of the campus to symbolically "reclaim" the campus and to include the Museum of Anthropology within the "APEC-free Zone" by November 25.
- "Summit Under Siege" from November 17 to 24. This stage included establishing a "tent city" (known as "Democracy Village" or "Demoville") on the grass near the Goddess of Democracy statue in the vicinity of the Student Union Building to symbolically reclaim the campus and to provide a focal point for information and discussion.
- "Crash the Summit" on November 25. This activity began at the Student Union Building and culminated in the march to the fence near the flagpole at noon that day.
17.4. The Complaint to Police
On November 7, Mr. Goodrich prepared a report on the incident and delivered it to the UBC RCMP Detachment. He recorded in the report that at 3:30 p.m., about three hours after the incident, his "right ear was still ringing and sounds [were] somewhat muffled."
Mr. Goodrich went back to the UBC Detachment on Monday, November 10. He told S/Sgt. Plante that his ear had continued to cause him discomfort over the weekend and had interfered with his ability to sleep. He asked S/Sgt. Plante if Mr. Singh could be charged with an offence arising out of the megaphone incident. S/Sgt. Plante told Mr. Goodrich that he would look into it and get back to him. Later, he told Mr. Goodrich that an assault charge could be considered.
That evening, Mr. Goodrich had his ear examined by a general medical practitioner. He was referred to a specialist and was given an appointment later in the month.
17.5. The Decision to Recommend a Charge
S/Sgt. Plante directed Cst. J. P. Lee of the UBC Detachment to begin a criminal investigation with respect to Mr. Goodrich's complaint. Cst. Lee telephoned another security officer, Mike Gesi, who had been with Mr. Goodrich on November 7, and asked him to submit a statement regarding the incident. Cst. Lee did not contact Mr. Singh nor did he try to identify any other potential witness.
On November 12, Mr. Goodrich prepared a further report on the November 7 incident and brought it to the UBC Detachment office. It was considerably more detailed than his report of November 7.
Even though it was not until November 14 that S/Sgt. Plante received the results of Cst. Lee's investigation, it is apparent that he had already made up his mind to do what he could to keep Mr. Singh off campus on November 25. On November 13, S/Sgt. Plante sent an e-mail to four detachments in the Lower Mainland asking each to have four officers available for duty on campus as the need arose. He began his message by saying:
An anti-APEC group, APEC ALERT, have several planned demonstrations which may involve civil disobedience from now until the conclusion of APEC on 97/11/25. We have experienced problems at the President of UBC's residence wherein APEC ALERT have attended at her residence and written anti-APEC slogans on the windows of her res. We currently have three members of the group charged and are pursuing our investigation which may result in additional charges. It is hoped that we can obtain support from Crown which may result in a charge of assault against the obvious leader of the group, JAGGY SINGH. It is our intention if we can obtain a "no-go UBC" with respect to SINGH, we may basically "break the back" of this group.
S/Sgt. Plante was asked about the reference in his November 13 e-mail to "breaking the back" of APEC Alert:
Q: But you say you want to--I'm using my words here, effectively break the back of this group, is that the APEC Alert group--group you're talking about?
A: What I'm referring to there, is--is, in my feelings at that time, is that as I previously stated, is that Jaggi Singh was clearly a recognized leader within this group, in my view he was. In my view, Jaggi Singh's presence amongst the group, drastically changed the dynamics of that particular group. In other words, Jaggi Singh, in my view, was intent upon leading his group into serious protests – a serious confrontation with the Police. And my view is that if Jaggi Singh was eliminated from that particular group, the dynamics drastically changed and that the likelihood of us, I mean us, being the police, being involved in serious confrontation with anti-APEC, or APEC Alert rather, was drastically reduced. And that's the intent of what I meant there.
17.5.1. The Report to Crown Counsel
In British Columbia, charges are laid by Crown Counsel, on the basis of information provided by the police in a Report to Crown Counsel. S/Sgt. Plante reviewed the Report to Crown Counsel delivered to him on November 14 by Cst. Lee and concluded that there was some evidence to support a charge of assault. In his testimony, S/Sgt. Plante conceded that the megaphone incident constituted a minor assault and that, on a scale of one to 10, with 10 being the most serious, the assault was "down towards the one area. It would be a more minor assault."
Cst. Lee said, and S/Sgt. Plante agreed, that it was S/Sgt. Plante who suggested that the Report to Crown Counsel request a warrant and that conditions be placed on Mr. Singh's release. As a result of those suggestions, the Report to Crown Counsel was amended. In its new form it asked that a warrant be issued for Mr. Singh's arrest (as opposed to a summons to appear in court) and that his release be subject to conditions not to go to the UBC campus or the University Endowment Lands or Mr. Goodrich's residence, and to avoid contact with Mr. Goodrich. Consistent with RCMP policy in matters of civil disobedience, S/Sgt. Plante, at 11:50 a.m. on November 14, faxed the material, which had been "certified correct" by Cst. Lee, to Administrative Crown Counsel Brian Shaw in Richmond for charge screening, as he felt that the matter "deserved careful consideration by Crown Counsel."
The Report to Crown Counsel set out the reasons for the request for conditions:
Reasons for Conditions:
- The accused is known by Campus Security and the RCMP as a prominent member of a group known as "APEC ALERT". Numerous protests have been conducted by the group on the UBC campus. GOODRICH has attended many of the protests and observed the accused as the leader of the group. GOODRICH states, the accused, in the most recent incident urged the group of protesters in their task by way of the bullhorn. GOODRICH is a Auxiliary Constable with the Royal Canadian Mounted Police and is well aware of the right to peaceful protest. The accused, after causing injury, did show intent by smiling at GOODRICH's reaction.
- The confrontational manner exercised by the accused and the physical injury inflicted is not in accordance with the right to peaceful protest and should not be permitted to continue. GOODRICH was in attendance to observe and keep the peace and in no way did he initiate confrontation or attempt to interrupt the protesters. The accused deliberately approached, confronted, and caused physical injury.
- With the approaching APEC conference, protests will bring about confrontations between the accused and GOODRICH. GOODRICH is the Assistant Patrol Manager for the Campus Security and will be present to supervise Campus Security members at most of the protests that might arise. The accused is known to lead most of the protests and would encounter GOODRICH again.
- The accused is not a student at UBC and does not reside on campus or on the University Endowment Lands.
- Campus Security is involved in patrolling and securing UBC campus grounds, buildings, residences and parts of the University Endowment Lands. In order for the accused to have no contact with GOODRICH, the no go condition in conjunction with, not to attend residence of GOODRICH, should include the UBC campus and University Endowment Lands.
- The accused should not be able to continuously cross the line from peaceful protesting to confrontational and possibly risking further injury to those who are present to support peaceful protests. If such actions persist, it could jeopardize the safety of the Internationally Protected Persons due to arrive and to those individuals targeted by the protest.
Crown Counsel Shaw and S/Sgt. Plante spoke on the telephone after Mr. Shaw had received the Report to Crown Counsel. Mr. Shaw apparently asked for clarification of the rationale for the recommendations. In answer, on November 17, S/Sgt. Plante faxed Mr. Shaw a four-page document outlining the "history of APEC Alert as the group impacts the local community." In the document, S/Sgt. Plante said that at about 2:00 a.m. on October 16, Dr. Piper had reported that three individuals were on the roof of the atrium at the rear of her residence. RCMP and campus security personnel attended at the residence, but the suspects had fled.
S/Sgt. Plante's document also referred to the "ball hockey" games that were played on Wednesdays as a form of protest by APEC Alert members on the private driveway leading to Norman Mackenzie House. The games apparently began October 22, with 15 APEC Alert members, including Mr. Singh, playing on Dr. Piper's driveway. When they were asked by campus security to leave and refused to do so, the RCMP were called. Cst. Lee and S/Sgt. Plante were among the attending officers. Although S/Sgt. Plante did not know UBC's position on the presence of APEC Alert members on Dr. Piper's private driveway, he explained to the group that refusing to leave the property "could constitute an offence of assault by trespass." Although the members dispersed without incident, some of them indicated that they were "prepared to risk arrest to support their position." S/Sgt. Plante later contacted Prof. Pavlich who said that if the group confined themselves to the driveway and did not damage the residence, Dr. Piper was prepared to allow them to 'play' on Wednesdays.
On Hallowe'en, which was Friday, October 31, a group of protesters apparently went to Dr. Piper's residence and wrote on her windows. S/Sgt. Plante believed that this had violated UBC's conditions. Although no physical damage had been done to the residence, S/Sgt. Plante decided to direct the arrests of some of the protesters because Dr. Piper's privacy had been violated and she needed protection, and because he was concerned that there would be "repetitions of the acts which may escalate in violence." Two people were arrested.
The RCMP then began providing 24-hour security coverage at Dr. Piper's residence because of a concern that APEC Alert would cause "irreparable damage" to the residence where the APEC leaders were scheduled to have lunch on November 25.
S/Sgt. Plante said in his report of November 17, that the incident of November 7 "was obviously in response to" the arrests of October 31.
S/Sgt. Plante then said:
For the sake of consistency and with a view of eliminating some of the more high profile members of Apec Alert from the UBC area or at least from Dr. PIPER's residence, the Report to Crown Counsel was forwarded recommending charges against the one individual who could be identified from the 97/11/07 incident. It was also recommended that a charge of assault be laid against SINGH, who, as indicated, is undoubtedly the "leader" although he, himself, denies that there is a specific leader within the group.
17.5.2. Eliminating Confrontation
S/Sgt. Plante was asked about the reference in his report to "eliminating" APEC Alert members from the UBC area. He said:
A: And that's what I am trying to do sir, is eliminate confrontation.
Q: All right.
A: And by eliminating Mr. Singh from the UBC area, I feel that I will eliminate the likelihood of confrontation.
Q: And sir, it seems apparent, then, from what you have been saying and what you are saying now, is that when you say, "Your purpose is to eliminate confrontation" even at the risk of eliminating lawful and peaceful protest or lawful and peaceful confrontation; correct?
A: Sir, I had no interest, absolutely no interest, in interfering with lawful protest. Absolutely none. My only concern was confrontation. That they could lead to serious incidents.
Q: You knew that the Anti APEC Group was – leaving aside Mr. Singh – committed to non-violent lawful protest; didn't you sir?
A: The information I had was that they were. And the concern I had was that Mr. Singh had the ability to lead them into confrontation that could become serious.
Q: Hmm hmm.
A: Without his presence, the dynamics of that group changed drastically. And I feel that he had a very significant amount of control over it, and that's what I was trying to eliminate.
S/Sgt. Plante was asked what consideration he had given to Mr. Singh's right to protest or express himself lawfully when he recommended that Mr. Singh not be permitted to go to the University Endowment Lands. He said:
A: I had absolutely no concerns about Mr. Singh's rights to lawful protest. That wasn't my concern. My concern from – as the Detachment Commander – was to provide a safe environment for the University, of course, which is one of my major clients out there. If Mr. Singh, in my view, had restricted his activities to just protest, obviously I didn't feel that any of this would be necessary.
Q: So you thought that had he been permitted to go back to the University on the 25th of November, 1997, that he would protest unlawfully?
A: Sir, I'm not certain what an unlawful protest is. In my view, protest is legal; it's criminal activity that I was concerned about.
Q: All right. I think your point is well taken. You thought that he may engage himself in activities that were contrary to the Criminal Code?
A: Yes.
Q: Okay.
A: Or if I could add to that? I'm sorry.
Q: Yes.
A: Perhaps not himself, but promote others to do that.
Q: Incite others to contravene the provisions of the Criminal Code –
A: Yes sir.
S/Sgt. Plante was asked why he had recommended an arrest warrant as more suitable than a summons to bring Mr. Singh before the Court. He said:
A: ...We felt it was appropriate to have conditions on Mr. Singh. The only way that I was aware that those conditions could be placed upon him after the charge had been laid, was via a warrant being issued and him being physically detained, and the conditions being a portion or a condition of release.
Q: That's because if there's a summons that issues, no conditions attach to the summons, except to go back to Court on a certain day; is that right?
A: That's right. It's my understanding that conditions are only a condition of release, so by way of summons, those conditions cannot be imposed.
Q: Because there's no release involved?
A: That's correct.
Q: Now, sir, why did you think it necessary to have conditions on Mr. Singh?
A: Because I was convinced, based on my experience dealing with incidents at the University, within the University, that Mr. Singh was intent upon promoting violent confrontation between the police and people that were expressing Anti-APEC sentiments, in particular, APEC Alert, which was a university based group.
S/Sgt. Plante was asked what it was about Mr. Singh that led to the conclusion that he might promote "violent confrontation" if permitted to return to the campus. S/Sgt. Plante answered that question at great length. I have read and re-read his answer and I can glean from it only the following:
- S/Sgt. Plante was satisfied that Mr. Singh was the leader of APEC Alert. He may well have been quite correct in that conclusion.
- S/Sgt. Plante believed that a press release put out by Mr. Singh on about October 29 was fraught with lies that would antagonize students to the point where a serious confrontation could arise.
- Mr. Singh was one of those who participated in the weekly hockey games on Dr. Piper's driveway and, in a direct response to some arrests that were made there on October 31, Mr. Singh took 50 to 60 protesters to the residence on November 7 (the occasion of the Goodrich incident). This was part of a pattern that S/Sgt. Plante saw developing with Mr. Singh promoting confrontation between police and the people he was leading.
The long explanation given by S/Sgt. Plante was, in my opinion, no answer at all to the question of why he would conclude that Mr. Singh would promote violent confrontation if allowed on campus on November 25. Rather, S/Sgt. Plante decided, correctly I believe, that the police assignment on November 25 would be an easier undertaking without Mr. Singh's presence. Then, on the flimsiest of grounds, albeit legally sufficient, he formulated a series of recommendations to Crown Counsel which, if imposed, would accomplish his objective of eliminating Mr. Singh from the campus on that day. To add insult to injury, S/Sgt. Plante took that step without any concern whatever for Mr. Singh's right to lawful protest.
17.6. Mr. Singh's Arrest
On Friday, November 21, S/Sgt. Plante was told that Mr. Singh had been charged with assault and that a warrant for his arrest had been issued that day. S/Sgt. Plante was in charge of arranging for the arrest.
17.6.1. Timing of the Arrest
Over the weekend, S/Sgt. Plante had discussions with both RCMP and VPD officers about how and when to arrest Mr. Singh. S/Sgt. Plante did not want him on campus on November 24 so he saw the morning of that day, before Mr. Singh arrived on campus, as the best time from "a strategic point of view." He said his "strategic objective" was to eliminate confrontation. He did not want Mr. Singh arrested in an emotional setting that could lead to a serious confrontation between Mr. Singh's supporters and police. He thought that making the arrest in a controlled, off campus location on the morning of November 24 would be the best way to minimize negative fallout. Arresting Mr. Singh over the weekend might allow too much time for an escalation of tensions in the days immediately preceding the leaders' meeting. He said:
A: I didn't know what to expect by this arrest. Obviously, if he was arrested, for example, on the 22nd, and that created an emotional impact, there was a possibility of that emotional impact sort of elevating over the next three or four day period.
And further:
Q: Okay. So it was your view that the reason to delay the execution of the warrant until the 24th was, that was the best way to achieve your objective of keeping Jaggi Singh off of campus when it really mattered, which was on November 25th, is that a fair statement?
A: To a degree. I just want to qualify that, is that as I've indicated, this was my objective. And that objective was based on the fact that I was concerned that Jaggi Singh would –
Q: I'm sorry.
A: –- would lead others to serious confrontation.
I am satisfied that S/Sgt. Plante was sincere in his belief that the morning of November 24 was the most suitable time for Mr. Singh's arrest.
S/Sgt. Plante was advised that the VPD had Mr. Singh under surveillance and that they would make the arrest when requested by S/Sgt. Plante. He alerted Cst. Lee and told him to enter the warrant on the CPIC (Canadian Police Information Centre) database on the morning of November 24. The warrant was not to be entered until 7:00 a.m. so that an "unknowing" police officer would not arrest Mr. Singh over the weekend. Cst. Lee made the CPIC entry as requested.
At about 11:00 a.m. on November 24, RCMP officers Cst. Thomas Howell, (now Cpl. Howell) and Cst. Michael Labadie, working as undercover officers out of the National Security Investigations Section, came to the UBC Detachment. They reported that the surveillance operation had lost track of Mr. Singh over the weekend but that he was in fact on campus at that time. S/Sgt. Plante was concerned. He felt that with Mr. Singh's leadership skills, a high profile arrest on campus might incite others who would not normally become emotionally involved. S/Sgt. Plante instructed the two officers, who were prepared to assist, that the arrest should be made on or off campus, but on campus only if it could be done in a secluded area where it would have no emotional impact on others. If it could not be carried out in either of those circumstances, the arrest was not to be made.
The arrest did in fact occur on campus at approximately 12:15 p.m. on November 24, but not in a secluded area as S/Sgt. Plante had directed.
17.6.2. The Witnesses
Eight witnesses gave evidence about the arrest. They were Mr. Singh; Robert M. Everton, an instructor and doctoral student at SFU who was on campus to participate in pre-APEC forums; Michelle E. Smith, an independent film maker present to capture protest actions on camera; Charity E. Mewburn, a graduate student; RCMP Cst. Howell, RCMP Cst. W. Paul Bambury, and RCMP Cst. Mitchell T. Rasche, all of the National Security Investigations Section; and RCMP Cst. J. Shane Tuckee, who was with the Crowd Control Unit. Cst. Labadie was also on campus with the other officers. All of the officers were out of uniform, wearing clothes that allowed them to blend in with the crowd.
17.6.3. How the Arrest Took Place
Although the central facts of the arrest are not in dispute, there are some differences in detail.
Mr. Singh had left Brock Hall, where he had been participating in pre-APEC events, and walked across a pedestrian mall toward the Student Union Building, a short distance away. Csts. Howell, Rasche, Bambury and Tuckee were outside the Student Union Building and recognized Mr. Singh as he approached. Cst. Labadie was also present but behind Mr. Singh. The officers concluded that this was their opportunity to make the arrest in a setting that they thought would comply with their instructions from S/Sgt. Plante. Cst. Tuckee said he and Cst. Bambury discussed the possibility of arresting Mr. Singh right away as it looked as though they could do so "without any fuss or muss." Cst. Rasche said he was not involved in those discussions and was asked about the plan to arrest Mr. Singh:
Q: And did it occur to you that you might just simply go up to Jaggi and say, "We have a warrant for your arrest. It's for common assault. Will you come with us?" Did that ever occur to you?
A: No.
Q: So what was on your mind was you had to grab him as quickly as possible, and get him out of there as quickly as possible; is that right?
A: The events just unfolded as they did. There was no game plan made.
Cst. Tuckee instructed that one officer leave to get a car and Cst. Labadie did that. Cst. Tuckee then approached Mr. Singh with the other officers and initiated contact by asking him when the next forum was to be held that day on campus. Almost simultaneously, Cst. Bambury called out Mr. Singh's name and told him that he was under arrest. By this time, Mr. Singh was surrounded by Csts. Tuckee, Bambury, Howell and Rasche. Csts. Bambury and Tuckee took hold of Mr. Singh to make the arrest. Mr. Singh resisted their efforts by pulling away but had no chance of escape with the four officers surrounding him. A tussle ensued. Mr. Singh said he was violently pushed to the ground. Mr. Everton described Mr. Singh as having been tackled to the ground. The officers said that Mr. Singh was not thrown to the ground but that Cst. Tuckee and Mr. Singh fell to the ground as they were pushing and pulling on each other. Cst. Tuckee ended up on top of Mr. Singh, on the ground, with Cst. Bambury immediately at his side to assist.
Mr. Singh was vocal in his protest against what was happening to him. I believe Ms. Smith when she said that Mr. Singh called out "help me, help me, my name is Jaggi Singh. This is Canada, I have not done anything wrong."
I believe that, as he said he did, Cst. Howell took out his police badge and made some reference to Mr. Singh's Charter rights. I also believe that, in the confusion, Mr. Singh neither saw the badge nor heard what Cst. Howell was saying.
Other officers assisted in handcuffing Mr. Singh. That was accomplished with his hands behind his back while he lay face down on the pavement. While this was occurring, the officers were concerned about the attention that Mr. Singh's calls for help might attract. Cst. Tuckee explained that concern and what he did about it:
My main concern at that point was people hearing him scream. Of course there's hundreds of students around, there's three or four policemen standing there making an arrest, a legal arrest, and my concern, of course, is the crowd is going to come over and get involved in it, and I've seen situations where its not a very pretty sight. So, at that point, I put my hand over his mouth, not his nostrils, allowing him to breathe, but I put my hand over his mouth so he could no longer scream. He was subsequently handcuffed. A police car arrived on the scene within seconds and he was placed in the back of the police car and the police car left the scene.
I accept that this is what occurred, except that Cst. Tuckee's suggestion that Mr. Singh was "placed" in the car does not capture the drama of the moment.
17.6.4. Leaving the Scene
Within seconds of Mr. Singh being handcuffed and restrained in his attempt to attract attention, an unmarked, two-door police car drove up in front of the Student Union Building. I accept Mr. Everton's explanation of what then occurred:
A car came rushing up from my left, where the parking lot was, onto the sidewalk; very quickly came to an abrupt stop. The doors were opened--during the time that Jaggi was being thrown in, I was again having an interaction with the two that were detaining me. And then as I looked--turned my attention back again to the vehicle, the doors were being closed. And it sped off at high speed.
Cst. Bambury's explanation of what occurred was quite similar:
Q: What happened after the point when –– when Mr. Singh was handcuffed?
A: Cst. Labadee came in his car, he drove it up on the--on the concourse and initially we all sort of jumped back because he came up so close to us. So, it was a matter of maybe three feet. He roared up, came to a stop, leaped out of the car, flung the driver's seat forward and I believe it was Constable Rasche and Constable Tuckee, picked Jaggi up by the upper arms, lifted him up and propelled him into the car.
Q: Okay, And when he was propelled into the car, what position did he finish up in?
A: I didn't see that part of it, quite frankly. I was--I was talking--this whole thing probably took less than thirty seconds.
To say that Mr. Singh was "thrown" into the car is a fair and reasonable assessment of what occurred. The objective of the officers was to get him into the car and leave without delay. I am satisfied that he was thrown onto the rear floor, face down, with his hands cuffed behind his back, and that the car sped off at a high rate of speed. Although the officers, in their haste, may well not have realized what had happened to Mr. Singh as he was propelled into the vehicle, I reject Cst. Howell's suggestion that he could have fallenbelly and face down, simply because of the "way we were driving."
Cst. Labadie was the driver. Cst. Howell jumped into the front passenger seat while Mr. Singh was being propelled into the back. Cst. Tuckee estimated that, from the moment he initially spoke to Mr. Singh until he was placed in the car, approximately 30 seconds had elapsed, but he acknowledged it could have been a minute or a minute and a half. It was Mr. Singh's view that the arrest occurred in less than one minute and I believe he was correct in that assessment.
Cst. Howell said that, from a police perspective, the arrest was "well executed." Cst. Tuckee made it clear in his evidence that he shared that view:
From a police standpoint and from a police perspective, it was an excellent arrest. There was no injuries to anybody, there was no crowd that formed, very minimal amount of force was used, just enough as necessary to keep him from escaping lawful custody. And tactically, it was a great arrest.
Cst. Howell said the reason for the speedy getaway was to leave before a crowd formed. Once the car was on Chancellor Boulevard, he directed Cst. Labadie to pull over and stop. He realized that Mr. Singh was in an uncomfortable position, face down on the floor, and he said there was no way he was going to allow him to remain in that position. Cst. Howell got out of the car, put Mr. Singh on the back seat in a sitting position and then got in and sat beside him. He said he wanted to calm Mr. Singh down and, to assist him, he loosened the handcuffs. In response to Mr. Singh, both Csts. Howell and Labadie showed their police badges and personal identification. Cst. Howell explained that the arrest was made pursuant to a warrant and when Mr. Singh asked, the warrant was shown to him. He told Mr. Singh they were on their way to the UBC Detachment and that he could speak to S/Sgt. Plante about the warrant. When Mr. Singh saw the name Goodrich in the warrant, he did not know who the man was, and it was not until some time later when he was in jail at Richmond that he even recalled the megaphone incident of November 7.
Mr. Singh agreed with Cst. Howell's evidence as to what happened when the car stopped. He said, in a widely distributed e-mail written on November 28, that "the two plainclothes men in the car were suddenly nice to me." He said that, sometime during the ride, his rights were read to him. Cst. Howell acknowledged that the Charter warnings had to be repeated because he was satisfied Mr. Singh had not heard what was said at the scene during the struggle.
17.6.5. At UBC Detachment
Mr. Singh was taken to the UBC Detachment where he was to be processed through the usual booking procedures, including a search of his person, before being moved to Richmond for his first court appearance.
As a result of the observations of witnesses Everton, Smith, Mewburn and perhaps others, word of Mr. Singh's arrest spread on campus. A large group of protesters went to the UBC Detachment office to learn the details. With the crowd growing and the possibility of an emotional scene developing, S/Sgt. Plante directed Cst. Lee and Cst. Mark Semeins to take Mr. Singh immediately to the Richmond Detachment. S/Sgt. Plante believed that if Mr. Singh were gone, the students would likely disperse. His instructions were followed and Cst. Lee was present in court that afternoon when Mr. Singh was brought before the presiding Provincial Court Judge.
17.7. The Undertaking
As ordered by the Provincial Court Judge, and as a condition of his release from custody, Mr. Singh signed an undertaking:
- to have no contact, directly or indirectly, with Cst. David Goodrich; and
- not to be found in the University Endowment Lands, British Columbia.
17.8. The Assault Charge
The undertaking noted that he stood charged with the November 7 assault of Mr. Goodrich, contrary to section 266 of the Criminal Code. His case was adjourned until December 8, 1997. It never did come to trial because, on January 7, 1999, Mr. Goodrich wrote to Crown Counsel asking that the charge be dropped as he was no longer employed at UBC and his further involvement in the matter could pose a problem with respect to future employment. He said he had suffered no long term effects from the incident but did not forgive Mr. Singh for what he had done.
17.9. The Charge Screening Process
An assessment of police conduct in these circumstances, particularly in respect of the Charter, requires an understanding of the function and purpose of the charge screening process in British Columbia and the responsibility of the police in relation to it.
Typically, in a Report to Crown Counsel, a police officer summarizes the results of an investigation, attaches copies of witness statements, and recommends that one or more charges be laid.
A police officer's duty, in presenting the Report to Crown Counsel for charge approval, is to accurately present the full case to the Crown so that the Crown can make an appropriate decision. The law is clear that it is improper for a police officer to intentionally mislead or withhold relevant information from a judicial officer: R. v. Donaldson (1990), 58 C.C.C. (3d) 294 (B.C.C.A.); R. v. Silverstone (1991), 66 C.C.C. (3d) 125 (B.C.C.A.).
If a police officer has met that responsibility to present a case accurately and fully to the Crown, the officer's personal motivation is irrelevant. The criminal justice system could not function effectively if police were legally required to weigh their motivations for recommending charges and seeking conditions. Police are not trained, and should not be required, to balance their personal motivations against an accused's rights. Requiring them to do so could result in significant adverse impact to the public interest because police, despite compelling evidence of an offence, might choose to err on the side of not recommending charges in situations where they are personally biased against an accused, to avoid criticism for making "improperly" motivated decisions.
It is Crown Counsel's responsibility to review the report, obtain further information if necessary, and then decide whether the recommended charge, or any other, will be laid. In making that decision the Crown, at least in British Columbia, must consider, firstly, whether there is a substantial likelihood of conviction and, secondly, whether laying charges would be in the public interest.
The decision to issue a warrant for arrest, as opposed to a summons to appear in court, is for the Justice of the Peace to make. Police may ask for a warrant, but it is the Justice of the Peace, not the police officer or Crown Counsel, who decides whether a warrant is justified. Section 512 of the Criminal Code says that a Justice of the Peace may issue a warrant if he or she has reasonable and probable grounds to believe that it is necessary in the public interest to do so.
At a bail hearing, section 515 of the Criminal Code authorizes the judge to do any of a number of things, including ordering that the person be released after giving an undertaking on whatever conditions the judge directs. It is the judge who decides what conditions, if any, should be imposed. In the absence of evidence that a police officer deliberately misled or withheld information from Crown Counsel or the judge, the officer cannot be held accountable for the Provincial Court Judge's decision to impose conditions, much less the nature of those conditions.
The separation of the investigatory function from the prosecutorial and judicial roles played by Crown Counsel, the Justice of the Peace and the Provincial Court Judge acts as a procedural safeguard against police abuse.
The actions which allegedly breached Mr. Singh's Charter rights were taken by Crown Counsel, the Justice of the Peace and the Provincial Court Judge, and the police cannot be held responsible for them, provided they have fully and accurately disclosed the relevant facts. It follows that I have no basis, at least so far as the Charter is concerned, for conducting a general inquiry into the RCMP's motivation, in the absence of evidence that they failed to make the required disclosure.
However, as I will discuss below, I am satisfied that I may consider such motivation when assessing RCMP conduct against the appropriateness standard.
17.10. The Issues
In my view, the issues I must now address are:
- whether there was a sufficient basis to charge Mr. Singh;
- whether the decision to seek a warrant and "no contact" and "no go" conditions was abusive in the circumstances;
- whether the timing of Mr. Singh's arrest was intended to ensure that he would be absent from UBC on November 25; and
- whether the manner of Mr. Singh's arrest was "shockingly disproportionate to the circumstances."
My Terms of Reference require me to assess the RCMP conduct at issue here against both the Charter and the standard of appropriateness.
17.11. Sufficient Basis to Charge
The complainants allege that the decision to charge was ill-founded and intended simply to prevent Mr. Singh from protesting.
Commission Counsel submitted that I must determine:
- whether the RCMP had reasonable grounds to recommend a charge of assault against Mr. Singh and whether they did so appropriately; and
- whether Mr. Goodrich's account of the event to the RCMP could reasonably lead to the inference that Mr. Singh hurt him deliberately.
In contrast, counsel for the 44 RCMP officers submitted that to address these issues would amount to a review of Crown Counsel's decision to approve the charge.
In my view, I do not need to resolve this dispute. Even assuming that Commission Counsel is correct, I am satisfied that the RCMP had an evidentiary basis, albeit a very slim one, to recommend a charge of assault. Mr. Singh spoke loudly through a megaphone close to Mr. Goodrich's ear. Mr. Goodrich believed, apparently because of Mr. Singh's subsequent demeanour, that the act was intentional. Mr. Goodrich returned to the UBC Detachment three days after the event and asked if charges could be laid. He then sought medical attention and was referred to a specialist.
The Criminal Code provides:
265(1) A person commits an assault when
(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;...
I am satisfied that yelling through a megaphone into another person's ear may constitute an assault within the meaning of section 265(1)(a). In R. v. Cheadle (1992), 82 Man. R. (2d) 265 (Q.B.), on reasonably similar facts, the court upheld a conviction where the accused had repeatedly blown a whistle in the ear of a police officer from a distance of about nine inches. Although the evidence of intent on the part of Mr. Singh to assault Mr. Goodrich was weak, I conclude that Mr. Goodrich may have suffered some, albeit minimal, physical consequences and that he believed Mr. Singh's act was intentional. Even if the RCMP had investigated more thoroughly, and other witnesses had stated that they did not believe that the act was intentional, the RCMP would nevertheless have been justified in seeking charge approval and leaving the matter of intent to Crown Counsel and the trial judge. In other words, the inference that Mr. Singh's act was intentional was available for Mr. Goodrich and the RCMP to draw. Although another police officer may have exercised that discretion differently, a sufficient basis did exist for the RCMP to initiate the charge screening process.
17.12. The Decision to Seek a Warrant and Conditions
The complainants allege that the decision to seek a warrant with "no contact" and "no go" conditions was abusive in the circumstances.
In the Report to Crown Counsel, the RCMP recommended that a warrant be issued for Mr. Singh's arrest and that conditions be imposed on his release which would prohibit him from having any contact with Mr. Goodrich or being at UBC. I will assess the RCMP recommendations and the motivation underlying them against, firstly, the Charter and secondly, the "appropriateness" standard.
17.12.1. Adequacy of Disclosure
As I made clear in my discussion of the charge screening process, one of the issues for my determination in relation to the Charter is whether the RCMP fully and accurately disclosed to the Crown the facts surrounding the alleged offence and their reasons for making the recommendations.
Commission Counsel and Complainants' counsel both cited Collins (see Chapter 15) for the proposition that conditions of release should not unjustifiably infringe upon Charter rights. In that case, the court set out principles to guide a judge in imposing bail conditions. Although these principles clearly apply to the imposition of conditions by a court, they are not relevant to the recommendations made by the RCMP to Crown Counsel. The real issue is the adequacy of the RCMP disclosure.
I am satisfied that S/Sgt. Plante revealed the primary reason for requesting an arrest warrant and the conditions of release when he said that it was done with a view to "eliminating some of the more high profile members of APEC Alert from the UBC area or at least from Dr. Piper's residence."
It is my firm belief that S/Sgt. Plante's motive in taking the November 7 incident forward to Crown Counsel with the request for an arrest warrant and conditions, was solely to eliminate from campus, on November 25, a rabble-rousing, vocal, difficult, annoying and, at times, unpleasant personality with leadership and organizational abilities, whose absence from campus on November 25 was bound to ease the tensions that S/Sgt. Plante correctly predicted would arise that day between protesters and police. While S/Sgt. Plante was insistent that he was motivated by a desire to avoid a violent confrontation between police and protesters and that his request was therefore justified, there was no objective evidentiary basis for his conclusion that Mr. Singh was himself a man of violence or that he aimed to incite others to violence.
Reference has been made to:
- S/Sgt. Plante's appreciation that the alleged assault was a "one" on a scale of 10;
- his objective, formulated by November 13, to "break the back" of APEC Alert by eliminating Mr. Singh from campus on the day of the leaders' meeting;
- the fact that, despite an insufficient evidentiary basis for such a conclusion, S/Sgt. Plante concluded that Mr. Singh would promote "violent confrontation"; and
- the fact that S/Sgt. Plante gave no consideration to Mr. Singh's rights.
Although S/Sgt. Plante said he was concerned that Mr. Singh might commit another assault, I do not believe that S/Sgt. Plante sought the warrant and conditions in order to ensure Mr. Goodrich's safety. In my view, although the alleged assault may have been "chargeworthy," S/Sgt. Plante's explanation for why he sought the conditions was premised upon a highly speculative concern that Mr. Singh's actions might jeopardize the safety of the Internationally Protected Persons. There was simply no evidence that Mr. Singh would initiate violent confrontations.
Furthermore, I believe the evidence reviewed earlier in this chapter makes it quite clear that S/Sgt. Plante's real concern was that members of APEC Alert, a group which he believed was led by Mr. Singh, appeared to have been involved in unlawful conduct in the past and had stated their willingness to be arrested, or, in other words, to break the law. S/Sgt. Plante truly believed that eliminating Mr. Singh might "break the back" of the group and eliminate any potential threat it posed.
I do not believe that mere membership in a group, some of whose members may have broken the law or may intend to break the law, justifies overriding a person's Charter rights. The only possibly illegal conduct by Mr. Singh identified in the Report to Crown Counsel was his presence at the ball hockey game on Dr. Piper's private driveway on October 22. Nevertheless, the Report to Crown Counsel contained the following, highly speculative paragraph:
The accused should not be able to continuously cross the line from peaceful protesting to confrontational and possibly risking further injury to those who are present to support peaceful protests. If such actions persist, it could jeopardize the safety of the Internationally Protected Persons due to arrive and to those individuals targeted by the protest.
In my view, Mr. Singh's participation in the ball hockey games, when combined with the alleged assault of Mr. Goodrich, which S/Sgt. Plante conceded was a minor assault, was insufficient to justify the conclusion that his conduct might endanger the Internationally Protected Persons and that, therefore, he needed to be removed from campus.
However, I am not prepared to find that S/Sgt. Plante's conduct was inconsistent with the Charter. He simply forwarded a report to Crown Counsel who sought the warrant from a Justice of the Peace and the conditions which were imposed by a Provincial Court Judge.
Although S/Sgt. Plante's motivations may appear unseemly, he fully disclosed those motivations to Crown Counsel. Further, although his assertions that Mr. Singh would be involved in further "confrontations" with Mr. Goodrich and that he needed to be prevented from "continuously [crossing] the line" and, perhaps, jeopardizing the safety of the Internationally Protected Persons were highly speculative, the speculative nature of those assertions was self-evident.
Therefore, I simply cannot conclude that S/Sgt. Plante failed to make full disclosure or that his conduct was inconsistent with the Charter. If there was any state action which was inconsistent with the Charter, it was not the action of S/Sgt. Plante. I am not prepared to, and cannot, question the decisions made by Crown Counsel, the Justice of the Peace and the Provincial Court Judge. Accordingly, whatever I might think of S/Sgt. Plante's motivations, they are not, in the circumstances, relevant to the issue of whether his conduct was inconsistent with the Charter.
Having so concluded, I must nevertheless go on to consider whether S/Sgt. Plante's conduct was "appropriate to the circumstances" and in this context I am satisfied that I am entitled to evaluate his motivations.
17.12.2. Recommendation was Inappropriate
Unquestionably, the RCMP's motive in recommending the charge against Mr. Singh, as well as the warrant and release conditions, was to have him removed from campus on the day of the leaders' meeting. I am satisfied that S/Sgt. Plante believed that this purpose was proper and appropriate. In that sense, he acted in good faith. In my judgment, however, he was terribly wrong in that conclusion. Seeking Mr. Singh's elimination from campus for the reasons he did is highly objectionable in a society that promotes Charter values. The fact that S/Sgt. Plante acted in good faith does not convert what was otherwise inappropriate conduct into conduct appropriate to the circumstances.
Counsel for the 44 RCMP officers referred to two reasons advanced by S/Sgt. Plante for seeking the conditions that he did. First:
The conditions imposed on Mr. Singh are ordinary conditions to protect the victim of an assault. Since Mr. Singh had assaulted Mr. Goodrich, there could be no criticism for recommending these conditions. Although U.B.C. is a large area, Mr. Goodrich's duties encompassed that entire area. More importantly, the nature of Mr. Goodrich's duties – security generally, and dealing with illegal protests in particular – were likely to bring him into contact with Mr. Singh.
I do not agree. Mr. Goodrich was in need of no protection from Mr. Singh. Mr. Goodrich was a trained security guard. Mr. Singh did not even know who he was until after his arrest on November 24. It borders on the ludicrous to suggest that Mr. Goodrich, trained in security work, including personal defence procedures, needed protection from a man with no record of assault or violent behaviour, and whose alleged assault, was very narrowly even worthy of a charge.
The second reason advanced by counsel was S/Sgt. Plante's belief that Mr. Singh intended to promote confrontation between the police and the people S/Sgt. Plante believed Mr. Singh was leading. In response to a question about the appropriateness of this reason, counsel for the officers said:
If there are two proposed arguments in support of a Court order, the order is not refused because one reason is correct, and the other is incorrect. Since there were clearly proper reasons in addition to the controversial reason, then it would still be appropriate to impose an area restriction whatever the status of the controversial reason. The area restriction could be fully justified on the basis of the concern that Mr. Singh would come into confrontation with Mr. Goodrich. The additional, broader concern was, in a sense, surplusage, which could not serve to nullify the proper concerns.
S/Sgt. Plante's second reason for requesting the area restriction was not surplusage. It was the reason. In my opinion, Complainants' counsel made an effective response to that reasoning with which I agree:
Now, the--on the recommendations to the no-go, Mr. Macintosh wants to say, well the no-go with respect to Mr. Goodrich is entirely appropriate, because he was--there was a sort of a direct connection between the charge of assaulting Mr. Goodrich and the no-go, vis-a-vis Mr. Goodrich. Well, there may have been a--a direct connection there, but that doesn't mean it was legitimate, because Mr. Goodrich is--is a--is a person who's a security guard and more than capable of taking care of himself. And more importantly, Mr. Goodrich didn't need the no-go. And if anybody had asked him, he would have said I don't need it, I'm not afraid of Jaggi Singh. Mr. Macintosh then goes on to say that the no-go to all of UBC was just surplusage, just surplusage. And that the--because so long as Mr. Goodrich was going to be at the campus, he would have been caught one way or the other. Well, it wasn't surplusage, it was the reason for everything. The no-go to UBC was the reason that they pursued the charge against Mr.--Mr. Singh. It was the reason for asking for a warrant so that they could have conditions. And the main reason for the conditions was in order to prevent Mr. Singh from being on campus. And so it's not surplusage.
Further, counsel for the 44 RCMP officers said that S/Sgt. Plante was clear and candid in stating to Crown Counsel "his secondary reason for requesting an area restriction against Mr. Singh." If the Crown had found the reasons for the restrictions insufficient, he would not have applied for them, counsel argued, and if the Provincial Court Judge had not believed the conditions were appropriate on the facts as a whole, he would not have imposed them.
I must balance that argument against the following from the closing submissions of Complainants' counsel:
If the Commissioner concludes that the real purpose, or one of the purposes, for the police asking for an assault charge to be laid was to attempt to have Jaggi off campus and in custody on November 25, 1997, then the RCMP acted improperly. To pursue criminal charges for such a purpose is a misuse of police discretion and an attempt to abuse the process of the Courts, which offends Section 7 of the Charter and its guarantee that security of the person not be deprived except in accordance with the principles of fundamental justice.
It is submitted that the Commissioner can come to no other reasonable conclusion than the reason for the warrant and the no-go was to ensure that Singh was not on campus during the AELM, not because he was a threat to Goodrich, and not even because he was a threat to any other person, but simply because he would lead the anti-APEC protest. The warrant and no-go were certainly the primary reason that the RCMP pursued the charge against Singh.
Let there be no mistake: from the perspective of the police, there can be little dispute but that Jaggi Singh was very, very, annoying. His frequent questioning of their authority, his open distrust of them, his vocal challenges of their motivations, his demeanor, his strong and defiant language, all contributed to make him a thorn in their side. The colossal error that the RCMP made was in taking the giant leap from assessing Singh to be a nuisance from a police perspective, to taking steps to eliminate that nuisance from the APEC picture. What they failed to recognize in taking those steps to neutralize Singh was that their legal mandate did not extend to interfering with his liberty interests for the purpose of making APEC run more smoothly, or the job of the police easier, or foreign dictators and Canadian politicians happier. However much an annoyance and nuisance Singh may have been to the RCMP, no matter how intense the police desire for a more amiable protest leader, he had a constitutional right to operate freely and without RCMP interference, within the limits of the law. It was not only Jaggi Singh's liberty interests that were infringed by the police actions. The RCMP plan to remove him from the picture on November 25th was designed both to silence him and to "break the back" of the protest activities that he was organizing and leading. The damage intended to be done by the RCMP to rights of free speech and assembly protected by Section 2 of the Charter, the rights of both Singh and of members of his group, was significant.
I agree with Commission Counsel that the reference to the RCMP can only be to S/Sgt. Plante who accepted responsibility for the decision to seek charges. Further, there is no evidence that any officer outside the UBC Detachment had any involvement in that decision.
Counsel for the 44 RCMP officers spoke further to this matter on the closing day of the hearing. In his presentation and in discussion with me he zeroed in on what he believed to be the question I must answer. It is a lengthy discussion and exchange but it focuses the issue that I must answer:
MR. KEVIN WOODALL: ...The question is though, from Staff Sgt. Plante's point of view, did he commit misconduct by having the matter submitted to a senior Member of the Ministry of Attorney General to ask whether it was legally defensible. And in so doing, what his job was--twofold, one to provide the evidence that he had, to Crown Counsel without concealing material evidence or fabricating evidence. And second and most important, it was very important for Staff Sgt. Plante to be candid about what – about what was Jaggi Singh's role in the – in APEC Alert, that he was a – a big leader on campus. And that he wanted him off campus, because he wanted him off campus on the 25th. If Staff Sgt. Plante had concealed either of those facts, he would very properly be subject of – of – of criticism. But he made a report to Crown Counsel, in which he detailed all of Jaggi Singh's involvement in APEC Alert. He detailed the fact that Jaggi Singh was a leader of APEC Alert, and he said explicitly that he wanted Jaggi Singh off campus, because he was afraid of what he would do on November 25th.
MR. COMMISSIONER: But the – did the intelligence point to the fact that he would be a threat if he was on campus?
MR. KEVIN WOODALL: The TAG reports did not. But there are two answers to that question. First is this. Mr. - Staff Sgt. Plante had two reasons for wanting to propose the no contact order and the no – and the no-go order. One of the reasons was the narrow reason that Jaggi Singh had assaulted Mr. Goodrich. And that reason alone, in my submission, would be a sufficient reason for keeping him off campus. In addition, there were the larger reasons--
MR. COMMISSIONER: Well, I have a lot of problems with that, but that's for me to wrestle with of course-
MR. KEVIN WOODALL: Yes.
MR. COMMISSIONER: But I really do.
MR. KEVIN WOODALL: Yes I – and the – and there's no doubt in the world, that those are very debatable questions. There's no doubt in the world, that reasonable people can differ whether he should have been kept off campus, and whether – even if there's legal authority, whether it was prudent to do so.
MR. COMMISSIONER: Well, somebody who is assessed as not having violent intentions to be wanted to be kept away from the scene of action, I have great difficulty accepting that that's the way you would deal with someone like that.
MR. KEVIN WOODALL: Well-
MR. COMMISSIONER: And not have them out there and let them do their thing, providing they stay within the law.
MR. KEVIN WOODALL: Right and – and I can't – can't disagree that that's a legitimate perspective. But what I ask you to do when you analyse this case is ask whether Staff Sgt. Plante committed misconduct in putting his case very candidly to Regional Crown Counsel, and letting Regional Crown Counsel decide. And then the – the actual decision of the con – of the conditions were imposed by a Judge. So again, a Judge decided whether or not to impose the conditions. And whether or not you agree with the decision that Regional Crown Counsel made or the Judge made, and I can see that there are lots of reasons for doubting them. When you're considering whether Staff Sgt. Plante misconducted himself, ask whether he did – whether it was misconduct to put these matters in the candid way he did, saying right up front, this guy's a leader of APEC Alert, I don't want him on campus, whether that was misconduct in so doing.
MR. COMMISSIONER: That's just not the way our system works.
MR. KEVIN WOODALL: Well the way our system works for the Police, Mr. Hughes, is that they are not legally trained. They may or may not – they – the – the view –
MR. COMMISSIONER: No, no wanting him off campus. Why should have he been wanted off campus?
MR. KEVIN WOODALL: He admitted – Staff Sgt. Plante made the assessment, and I submit it was a very realistic assessment, and I set out all the reasons in my – my submission for saying so; that while Jaggi Singh himself would not necessarily be violent in the sense of throwing rocks or using weapons, he was – he had the capacity and intention of inciting in – a – a large group of people to engage in a serious confrontation with the Police. That was Staff Sgt. Plante's assessment and I think that that is an assessment which is very capable of being accepted. And again--
MR. COMMISSIONER: But isn't the police force there to deal with the confrontation, if it comes?
MR. KEVIN WOODALL: Well, the police force is there to prevent reasonable apprehensions of the peace. That's one of – that's one of their duties. And it is a very common function of the police, in all sorts of circumstances, and the Criminal Code acknowledges this, that when you're imposing conditions, you impose them not merely to deal with what has happened in the past, but to prevent offences in the future. And if, while the matter's debatable, there's nothing wrong, in my submission, with Staff Sgt. Plante saying to the authorities, here's my case, you judge it from a legal point of view and you tell me whether I'm right or wrong. That's all – that's all he as a police officer can do.
MR. COMMISSIONER: Yes, but I guess my concern, and I'm going to be quiet because I'm taking up your time. But my concern goes back to the exercising of judgment to decide that that's the course this matter should have taken.
MR. KEVIN WOODALL: Well, there's no doubt that that – that that is a very debatable issue, and you – you'll make your recommendations. But I ask you simply to focus on whether Staff Sgt. Plante committed misconduct in his particular role in it.
My Terms of Reference make it quite clear that the question I must answer is not simply whether S/Sgt. Plante committed misconduct in putting his case candidly to Crown Counsel for resolution. Rather, I must decide whether it was "appropriate" for S/Sgt. Plante to put forward a case for consideration by Crown Counsel when his motive for doing so, in respect of an extremely minor assault, was to eliminate Mr. Singh from campus on November 25 and "break the back" of APEC Alert, thereby making the job of providing security easier than it likely would have been had Mr. Singh been present to give leadership to the protest movement. That was S/Sgt. Plante's motive. Mr. Goodrich was in no danger whatsoever from Mr. Singh's presence on campus. Mr. Singh had no record of violence in his background and S/Sgt. Plante's reasons for citing both Mr. Singh's ability to incite violence by his followers and the likelihood of him doing so were fanciful and nothing more.
The police strength on campus on November 25 was more than adequate to take care of any unlawful conduct on the part of Mr. Singh and his followers. Not being inside the planning loop, perhaps S/Sgt. Plante did not know of the array of security forces available to the RCMP. If S/Sgt. Plante was correct in concluding that it was necessary to eliminate Mr. Singh from campus, a conclusion with which I am in complete disagreement, it would not say much about the capability of our national police force.
For all of these reasons, I conclude that S/Sgt. Plante's conduct was not appropriate to the circumstances. He was motivated to ensure that Mr. Singh, who was a vocal, difficult and at times an annoying personality, did not create confrontational situations with which the
RCMP would have to deal in addition to their general duty to ensure the security of the leaders at their meeting on campus. Although the fact that he fully disclosed his motivations and speculative concerns to Crown Counsel has led me to conclude that his conduct was not inconsistent with the Charter, I believe his motivations for wanting to keep Mr. Singh away from UBC cannot be condoned.
It will be noted that counsel for the 44 RCMP officers acknowledged that the Threat Assessment Group reports did not point to the fact that Mr. Singh would be a threat if he was on campus. In a note prepared and sent by S/Sgt. Plante to Cpl. Duffield on November 12, S/Sgt. Plante acknowledged that he was aware from contact with the National Security Intelligence Service that "APEC Alert is committed to non-violent acts." He said that, during a phone call from Steph Ponich of National Security Intelligence Service, he had tried to determine what the mood would be if Mr. Singh was charged. He advised Cpl. Duffield in his note to her:
It would seem that the group may consider him a martyr and they may gain some support. On the other hand, considering that they are resorting to non violent acts and seemingly are not overly interested in being arrested considering that some of the group are graduate students and would seemingly have lots to lose, the question must be asked, "what would/could they do if SINGH was arrested."
Further, S/Sgt. Plante was in fairly constant contact with Cst. Paul Bambury and he knew that Cst. Bambury's APEC assignment related to the gathering of intelligence. It was Cst. Bambury's duty to identify any potential threats against the Government of Canada and specifically the Prime Minister. Each officer knew the other's view of Mr. Singh. Cst. Bambury's opinion, based on his intelligence gathering, was that Mr. Singh posed a minimal threat. He said the officers working in intelligence knew that there would be large numbers of demonstrators but they felt that Mr. Singh's ability to motivate them or direct them was negligible. He said that he and S/Sgt. Plante had a difference of opinion about Mr. Singh in that respect. He said he was aware that S/Sgt. Plante did not want Mr. Singh on campus at all. He said that Mr. Singh's attendance on campus was irrelevant to him because his presence on campus would not jeopardize anyone that Cst. Bambury had to protect, and that included the Prime Minister of Canada.
S/Sgt. Plante acknowledged that it was after he sent out his note of November 12 to Cst. Duffield that he decided that Mr. Singh should be arrested. He was asked how he rationalized his knowledge that the protesters were resorting to non-violent acts with the necessity to get Mr. Singh out of the way when November 25 rolled around. He answered:
A: Well, as I indicated, I was – my impression, my dealings with Mr. Singh, my belief was that he was not content, to let them be involved in non-violent situations. I thought he wanted to elevate the group to be involved in serious confrontation with the Police. I have my own definition of what violence is and perhaps that may be an issue that I should – would like to explain is that--
Q: Well, if you want to, go ahead.
A: Excuse me. I think there's varying degrees of violence. Violence, in my view, a minor level of violence is two people pushing each other. And that's really, I wanted to try and make sure that those types of situations were avoided.
So, to try to avoid incidents as minor as two people pushing each other, S/Sgt. Plante ignored police intelligence, ignored Mr. Singh's right to peaceful protest and freedom of expression and pursued his course to break the back of APEC Alert and eliminate Mr. Singh from campus. That evidence fortifies my opinion with respect to the motive that I am satisfied drove S/Sgt. Plante to pursue Mr. Singh's arrest.
All of this says a great deal about the planning and organizational structure put in place by the RCMP for the leaders' meeting on the campus. Here was an officer, dedicated to and sincere in his work, who had no involvement whatever with APEC until two months before its occurrence and never was in the planning loop. (He said he had never been to ACCO's office.) Yet, as head of the UBC Detachment, he had sole authority to address the Singh matter as he chose. Those who had been working and planning the event, the largest security operation in the history of the RCMP, had no knowledge of nor involvement in the entire Singh issue which, I believe, was a significant development in the security assignment resting with the RCMP that week.
17.13. Timing was Not Inappropriate
The complainants allege that the timing of the arrest (that is, the deferred execution of the warrant) was intended to ensure that Mr. Singh would be unable to attend UBC on November 25.
The fact that S/Sgt. Plante waited until November 24 to direct that the arrest occur does not, in my opinion, constitute a deferral of the execution of the warrant for an improper purpose. S/Sgt. Plante said he deferred the execution of the warrant because he was concerned that an arrest over the weekend might have an emotional impact on other protesters and heighten confrontations with police in the days preceding the leaders' meeting. In my view, S/Sgt. Plante satisfactorily explained his actions from the time he was notified on November 21 that the warrant had been issued until the morning of November 24. I am satisfied that he believed that his goal could best be achieved by entering the warrant into CPIC at 7:00 a.m. with the arrest to follow soon after.
Complainants' counsel also suggested that S/Sgt. Plante delayed the execution of the warrant to ensure that Mr. Singh's court appearance would be at the last possible moment. As I understand counsel's submission, there was no guarantee that a judge would impose the requested "no go" condition. Therefore, it was S/Sgt. Plante's intention to have him arrested at noon on November 24, and then bring him to the UBC Detachment and keep him there until it was too late in the day to get before a judge in Richmond. Mr. Singh would then have to remain in custody overnight until a court appearance the next morning. As a consequence, when APEC Alert actions began on campus on the morning of November 25, Mr. Singh would be either in jail or in court in Richmond. Counsel suggests that S/Sgt. Plante's plans went awry because of the student march on the UBC Detachment and, but for that unanticipated event, Mr. Singh would never have been before a judge until November 25.
S/Sgt. Plante rejected that proposition and said that his expectation had been that Mr. Singh would be arrested in the morning of November 24, before arriving on campus. The plan was to interview him and have him appear in court in Richmond that morning. He said:
I had no way of, obviously, of controlling when he was to be arrested, or when he was arrested on the--on the 24th. But certainly there was no indication, no attempt on our part to restrict his appearance in Court in the afternoon session at Richmond.
I accept S/Sgt. Plante's evidence and reject the submission of counsel. As much as S/Sgt. Plante wanted to prevent Mr. Singh's presence on campus on November 25, which is quite another issue that has been addressed above, I do not attribute to him the underhanded conduct implicit in counsel's line of questioning. I believe that S/Sgt. Plante saw his objective of having Mr. Singh barred from campus on November 25 as best achievable by the process that he recommended to Crown Counsel and he never deviated from that. Had either Crown Counsel or the judge declined to do as S/Sgt. Plante had hoped, there is no reason whatsoever to believe that he would not have, in an honourable way, accepted his obligations as a sworn peace officer to uphold the law in the performance of his duties. I am satisfied that there was nothing inappropriate about the timing of Mr. Singh's arrest.
17.14. Manner of the Arrest
The complainants allege that the manner of the arrest was "shockingly disproportionate to the circumstances."
Csts. Howell and Tuckee believed the arrest of Mr. Singh was an excellent, well-executed arrest. In their closing submissions, however, Complainants' counsel expressed another view:
While there may be circumstances where police must employ arrest techniques such as these because of serious public safety considerations, no factual basis supporting the need for such a shocking mode of arrest was established in the evidence.
...the (mode of) arrest violated notions of decency and fundamental justice, and was totally unjustifiable.
The circumstances of the arrest of Singh, the ...grabbing of him from a pedestrian area near the Student Union Building by a group of undercover officers, the physical nature of the arrest, which brought police officers and Singh to the ground, notwithstanding the fact that Singh's resistance to the police was described by them as "minimal," the placing of a hand over Mr. Singh's mouth to prevent his screams attracting the attention of others, the shoving into the unmarked car, causing him to weep, and speeding away off of campus, were shockingly disproportionate to the circumstances and the alleged offence.
In my view, the fact that the arrest was effected by undercover officers, in a pedestrian area, whose vehicle quickly left the scene is, as a matter of law, not directly relevant to the issue I must address; namely, whether the RCMP used excessive force in making the arrest.
Mr. Singh had been charged with assault. A warrant had been issued for his arrest. The undercover officers were instructed to effect the arrest and, in order to avoid creating a confrontational scene, they thought it necessary to arrest Mr. Singh and remove him from campus quickly. Quite understandably, Mr. Singh resisted the arrest and force was used to restrain him. In their haste to leave campus, the officers unceremoniously threw Mr. Singh into the back of the vehicle and sped away. Once the vehicle was safely away, the officers helped Mr. Singh into a more comfortable position. He did not suffer any injuries.
Section 25(1) of the Criminal Code protects a peace officer who is required or authorized by law to do anything in the administration or enforcement of the law if the officer acts on reasonable grounds and does not use excessive force. The purpose of section 25(1) is twofold: it absolves of blame anyone who does something that he or she is authorized or required by law to do, and it empowers such person to use as much force as is necessary for the purpose of doing it: Eccles v. Bourque et al. (1973), 14 C.C.C. (2d) 279 (B.C.C.A.), aff'd (1974), 19 C.C.C. (2d) 129 (S.C.C.). The law is also clear that, in determining whether the force was necessary, the trier of fact must consider the circumstances as they existed when the force was used and also bear in mind that a peace officer need not measure the force used with exactitude: R. v. Bottrell (1981), 60 C.C.C. (2d) 211 (B.C.C.A.). Further, allowances must be made for the "exigencies of the moment," including the "aura of potential and unpredictable danger": Anderson v. Port Moody (City) Police Department (4 August 2000) New Westminster S016178 (S.C.).
Although the arrest was not made in a secluded area and the attention of those passing by was attracted by the commotion caused by Mr. Singh's vocal protests and the coming and going of the fast moving vehicle, it was not carried out in the presence of a crowd. I am satisfied that the officers believed that, by acting swiftly when the opportunity to make the arrest arose, the consequences of making the arrest where they did would be no different than if they adhered to S/Sgt.'s Plante's directive to choose a secluded area. With that belief, they had to act quickly and they were entitled to take reasonable steps to ensure they did not become embroiled in a potentially difficult and dangerous confrontation with bystanders. That potential was certainly present given the concerns expressed by Mr. Everton, Ms. Smith and Ms. Mewburn about what they had just witnessed. Fortunately, Mr. Singh did not suffer any injuries during the arrest and any discomfort he experienced during his removal from campus was short-lived.
In assessing whether the RCMP used excessive force, I am very conscious that I am looking at the matter with the benefit of hindsight and that the police were dealing with a vocal and resistive person in a setting where it could reasonably be expected that a crowd hostile to the officers could quickly gather.
Nevertheless, even though the officers were not required to measure the force used with exactitude, I cannot accept that it was either necessary or appropriate to propel Mr. Singh face first into the rear floor area of the vehicle, particularly given that his hands were cuffed behind his back and he was then well under the control of the four officers. It would have taken mere seconds to place Mr. Singh in an upright sitting position, without materially increasing the risk of confrontation with the others in the area.
In my view, tossing Mr. Singh into the vehicle was a spur of the moment decision made under stressful circumstances. Although he did not remain on the floor for long and suffered no lasting consequences, it was nevertheless in excess of the force required to accomplish the arrest and the RCMP officers should have recognized that such force was unnecessary. The propulsion of Mr. Singh into the vehicle, face first onto the floor, with his hands cuffed behind his back, crossed the line. It was not appropriate to the circumstances.
17.15. Conclusion
I am satisfied that the RCMP conduct reviewed in this chapter was consistent with respect for the Charter. I have found, however, that in the instances I have identified, not all of that conduct was "appropriate to the circumstances."
It is worth reiterating that S/Sgt. Plante was not inside the RCMP planning "loop" in preparation for the events that were to occur on campus November 25. He had only arrived at the UBC Detachment two months previously and found little or no communication link between the RCMP's APEC planning process and the UBC Detachment within whose jurisdiction the event was to occur. He took some positive steps to acquaint the UBC Detachment with what was taking place regarding the leaders' meeting. Despite the extreme sensitivity of the whole APEC planning operation, particularly as it pertained to the leaders' meeting to be held on campus, the events that gave rise to Mr. Singh's complaint were left solely to the judgment and decision of one Staff Sergeant, to the exclusion of senior commissioned officers who held overall responsibility for security, and who had been working on the assignment, full time, for months and months. I am highly critical of a planning process that would allow events to evolve in such a manner.