APEC – Commission Interim Report
The complaint is that peaceful protesters at Gate 6 were ordered to clear the road and then pepper sprayed before they had a chance to do so. Some were pepper sprayed as they were leaving. Others were pepper sprayed as they stood watching. Mark Brooks was arrested and pepper sprayed as he was asking for calm. Decontaminant services following the spray were said to be insufficient and inadequate.
28.1. Clearing the Road
As the time approached for the leaders to depart from the campus at the close of their meeting the afternoon of November 25, a group of 50 to 60 protesters had gathered in the vicinity of Gate 6. Some were sitting and some were standing on Marine Drive, blocking the exit route that the motorcades would soon need to pass through. According to witnesses, the mood was calm and the protesters had indicated that many of them would voluntarily leave the roadway if required to do so.
However, the remaining two exits from campus were also compromised by groups of protesters, time was short, and S/Sgt. Stewart was directed to clear the road. In Chapter 12, I described the arrival of S/Sgt. Stewart with two Quick Response Teams at Gate 6. He was also accompanied by Sgt. McLaren, Sgt. Mercer and Cst. Fulks, bringing the total number of RCMP officers present to about 40. S/Sgt. Stewart carried a Mark 46 canister of pepper spray. Sgt. McLaren and Sgt. Mercer were similarly equipped. Insp. Killaly recalled telling S/Sgt. Stewart, as he approached the front of the line that had formed across Northwest Marine Drive, that " we have to move these people off the roadway and do it now."
Unfortunately, nobody briefed S/Sgt. Stewart about the prevailing mood among the protesters at the site. Insp. Killaly described the scene before S/Sgt. Stewart arrived as " fairly quiet" and " fairly laid back." Megan Hunter, a first year student living nearby had heard people chanting slogans and came to join in. She said that Mark Brooks used a megaphone to remind everyone they were there for a peaceful protest, that the police were not the enemy-they were doing their job-and the protest was against APEC, not the police.
Once the two police vans arrived and the officers disembarked, Ms. Hunter said, tension rose on both sides, particularly among the students as they were not sure what the police were planning to do. She said that at this time Mark Brooks said to the police, using the megaphone, that a lot of people wanted to leave the road and were not interested in being arrested. He asked " that the police give us warning so that we would have a chance to clear the road."
S/Sgt. Stewart approached his task with misconceptions about the Gate 6 protesters clearly in his mind. He said that, before he left Gate 3, other officers had described to him the " resistive nature" of the protesters at Gate 6 and told him that they had been asked to move to allow two buses through but had refused. This was incorrect. He said he also had information that some of the students were determined to stay on the road and be arrested. In my view, it was premature at that time for anyone to come to this conclusion. Had he communicated with any officer who had been there for the preceding hour, S/Sgt. Stewart would have learned something very different about the frame of mind and the relative composure of those on the roadway.
Instead, without any understanding of the frame of mind and disposition of the protesters before him, S/Sgt. Stewart, with his eye on his watch, moved in to accomplish the task that had been so hastily devised, communicated and assigned to him.
At the front of the police line, facing the protesters, and in a firm, forceful and decisive tone, S/Sgt. Stewart delivered his message:
Ladies and gentlemen, my name is Staff Sergeant Stewart. I am clearing this roadway, You have one opportunity to move up that road and clear it off or you will be arrested. I am going to use force, whatever force I deem necessary. I do not intend to fool around. I intend to clear this road. I intend to clear it now. Put the dogs on the side, you are going that way.
After a lapse of one or, at most, two seconds from completing his command, S/Sgt. Stewart hit the spray button. He said that when he saw the actions that were being taken, he judged that he had allowed the protesters sufficient time to absorb both his presence and his command and to respond. He explained:
A: It would normally not be enough time, sir, at all. However when persons, that I observed, that were in front of me, began taking action to defeat the use of OC Spray, and bearing in mind the circumstances throughout the course of the day, what I knew about the protestors that were on the roadway, that I had information of other protestors coming over land to reinforce Gate 6. That some protestors in front of me began to stand up and then locked arms and went back to sit down again, then I realized that they were taking the definitive action and that I must respond in kind and I stepped up one level and used OC Spray.
Q: Sir, we cannot find a photograph or a moving video picture of people locking arms together as you' ve described. How many people, do you say, locked their arms together?
A: There was three in front of me.
Q: Three in front of you.
A: That began standing up. A man and two women.
Q: Hmm hmm.
A: And the man locked the arms with the women. And two other persons began moving their facial coverings, Which suggested to me, as I' d experienced throughout the day, that they were determined to resist OC Spray. I also recognized at least one person who had been actively involved in the incident at the flagpole and had been subjected to OC Spray, at that time, and he was also there.
Q: Now, just to back up a moment. You say the three people started to stand up and locked arms?
A: Yes, and sat back down, sir.
Q: And sat back down?
A: Yes, sir.
Q: And were there others that were sitting down?
A: At least two, sir.
Q: So do we have a total of five that were seated, in your vision, at least?
A: Yes, sir.
S/Sgt. Stewart explained that if people took the opportunity to mask themselves against the pepper spray, as did two who remained seated, he would have to advance a level beyond the spray and use a closed hand technique to move them off the roadway. He said he dispersed the pepper spray to avoid having to do that. He explained why:
Throughout the course of the day, through all the pushing and all the –-the difficulties that the Police had been subjected to, through members being physically shoved and assaulted, not one punch was thrown by a police officer, not one baton was used. And I intended to get through that day, without doing that.
S/Sgt. Stewart acknowledged that, in the nine seconds or so from when he began speaking until the spray started, almost all of the protesters present, both standing and sitting, were taking appropriate steps to comply with his words. He said that this left him with five persons remaining on the road, with two of them intending to defeat the OC spray. Sgt. Mercer accepted that the time between the conclusion of S/Sgt. Stewart' s directive to the protesters and S/Sgt. Stewart' s use of pepper spray could have been about one second.
Sgt. Mercer was then asked if he agreed that one second would not be sufficient time to allow the crowd to respond to a verbal command:
I disagree with you, because I think what--as I said in my evidence-in-chief, while he was giving the order that he was giving, we were watching people link arms and hold things up over their face. I don' t think that any time after that was required. They had already made up their mind, which is what I' ve said.
Sgt. Mercer said he formed the opinion that the crowd was not going to comply with S/Sgt. Stewart' s directive so he followed suit by spraying just over the heads of the seated crowd. He believed that the most effective way of causing them to leave would be to make the intersection an uncomfortable place to be.
Sgt. McLaren soon followed by releasing his pepper spray. He said that, before he did so, a fair number of people had got up off the road and were moving towards University
Boulevard but a group of 20 of them were standing near where University Boulevard joins Northwest Marine Drive so he sprayed in their direction to cloud the area in front of them and discourage them from returning to the intersection. At that point, S/Sgt. Stewart told him that that was enough spray to dispense. The result was that those 20 or so persons did in fact turn and head up University Boulevard.
CBC Cameraman Rob Douglas had arrived in the Gate 6 area about 3:10 p.m. He estimated that there were about 30 protesters present, about 12 sitting and the rest standing on the road. He was asked to describe what he observed:
A: The fellow--one of the students with the megaphone, at that time, made several comments to the effect that, they were just here to sit in the road. They were not going to cause any trouble. It was a peaceful protest. That if--they assumed that they would be given time to clear the road, and at that time anyone who did not want to be arrested, should leave. I guess that' s pretty much it.
Q: Okay.
A: Roughly half an hour later, I' m just guessing now, many more police officers arrived. The total now would be, I would guess maybe 40 or 50. I' m just guessing here. At that point Hugh Stewart, came up to the barricade--I was standing right at the barricade, so he passed very close to me, within three feet. The barricade was opened, and he came through. He had a very large canister of pepper spray with him. At that time, he introduced himself to the students, he said, he was going to clear the road, he was going to use any force he deemed necessary. They had one chance to move or they would be arrested. At this point, the students immediately, in front of me, the ones sitting in the road, stood up to leave. And he pepper sprayed them.
Mr. Douglas, who said he did not see any of the protesters exhibiting aggressive behaviour, received considerable spray in his eyes during the discharge of spray by S/Sgt. Stewart. That matter will be addressed separately in this chapter.
Ms. Hunter described what she saw when she and her friends joined the protesters some time after 3 p.m.:
A: When we got there, there was a group of protestors sitting on the ground. Then there was some big sawhorse, kind of barricades across the road. And a couple of lines of police officers on the other side of those barricades, probably 20 Police Officers, in that range.
Q: Okay.
A: And it was just a very laid back environment at that point. People were joking around, and the police officers seemed quite calm, joking around,
Q: All right. And what sorts of things were the protestors doing, for example?
A: People were chanting slogans a bit, the megaphone got passed around, at some point, and people were just voicing their opinions on APEC and things. And Mark Brooks, who--well, the guy I later found out was Mark Brooks, the man with the megaphone, was reminding everyone that we were there for a peaceful protest and reminding everyone that the Police were not our enemies, they were there doing their job and we wanted to protest against APEC not against the Police.
Q: Okay, carry on, what happened then?
A: Then Staff Sergeant Stewart came up to the barricade; identified himself, said that he was going to clear the road. So, as soon as he came up and identified himself, I stood up and started to leave because, like I said before, I had absolutely no interest in being arrested.
Ms. Hunter said she was nearing the edge of the road as the pepper spray started. She said she saw a number of people attempting to leave the road who got sprayed. Robert West, a former UBC student, was amongst the protesters. He also heard Mr. Brooks speak through his megaphone as the vans arrived, but before S/Sgt. Stewart and his Quick Response Teams had reached the barricades. He said Mr. Brooks specifically turned to the officers and said: " before you clear us off the road give me five seconds to get these people off the road before you do anything."
Ms. Andrea Neyedli was a first year UBC student and one of those seated on the road. She described her experience:
A: So the one man in front walked up to the barricade. They started removing the barricades. He identified himself as Staff Sergeant Stewart; made it clear that he was clearing--going to clear us off the road, and that he would use any force necessary. There was no pause for me, as I remember, I got up. I was in a half crouched position, and ready to leave, and immediately I was hit directly in the face with a gust of white pepper spray.
Q: Do you recall how much time passed from the time you first heard Staff Sergeant Stewart give you a warning, to the time that you were hit with the spray?
A: I would estimate that from the point that he opened his mouth and said his name, to the point that we were sprayed, maybe it was 10, 20 seconds.
Q: And was it your intention when asked to move, to move?
A: It was my intention to move to the side of the road, because I had assumed that we would be allowed to do that.
Q: Right. And carry on and describe what happened to you next?
A: I was--as I said, I was in a half crouched position, standing up, and I got sprayed from the front. I have no idea who sprayed me. I turned, I had my hand covering my face, and took a couple of steps back--or, back towards University. I was definitely incapacitated by the first gust of pepper spray. It had hit me straight on, and I was blinded. After I took the two steps, I saw a dark figure in front of me, and felt another blast of pepper spray hit me again.
Q: Where did it--
A: Pretty much point blank.
Q: I' m sorry. Where did it hit you again.
A: Straight in the face. And then, at that point, I screamed very loud, and started running in a diagonal--well, not running, stumbling--in a diagonal line towards University Boulevard.
Ms. Neyedli emphasized that, by not allowing her enough time to get on her feet before she was sprayed, the warning given had been unfair. She said that, when she arrived, she was not prepared to do anything illegal nor to resist the commands of the police. She continued:
A: I was there to be seen. I had a point to make. I feel very strongly about that point and I think that it is my right, as a human being, to be able to express that.
Q: Mr. Brooks, had indicated to you that if you sat on the road, you would probably be arrested; hadn' t he?
A: I think that he indicated that if we sat on the road and resisted the Police orders that, yes, we would be arrested; I think that' s common sense. Mr. David Wolinetz was a student at UBC. He was one of two or three who were sprayed while still seated on the road. He was asked what happened when S/Sgt. Stewart arrived:
A: Previous to his arrival, there had been an influx of Police Officers, I believe when he got there, they did outnumber us. And as I remember it, he marched up with a group of officers, holding a large canister and he identified himself as Staff Sergeant Stewart, said that he had been ordered to clear the road, he intended to use force, he didn't intend to fool around. And at that point began pepper spraying immediately.
Q: Okay. And what, if anything, were you doing immediately before he started pepper spraying?
A: I basically was listening to what he said and then I got hit with--with a blast of pepper spray.
Q: Okay, had you taken any steps to protect yourself?
A: I believe when I saw the can of pepper spray I did pull my sweater over my nose because I' d been sprayed earlier and I was honestly quite afraid of the stuff.
Q: Okay--and that--would you have done that before he started pepper spraying, or?
A: I believe I did before.
Q: Did you make any attempt to get up?
A: I think I had my hands on the ground initially to push myself up, but I didn't have a chance to begin moving.
Q: Had you made up your mind-at the moment the pepper spray began-had you made up your mind whether to stay on the road or whether to leave?
A: No I hadn' t, I--when I saw the can of pepper spray I was--I was pretty much decided I was going to leave, but I hadn' t--I--I don' t--I guess I wasn' t a hundred percent settled in my mind.
Q: Okay. All right and what happened to you after you--first of all, where did the spray get you?
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A: As I--It' s not one hundred percent clear, but as I remember it, I was hit directly in the face with a large burst and then--I--after that I immediately kind of curled into a ball almost and covered my face and what not, and I just remember being sort of having the feeling of being sprayed up and down--like I was being sprayed with a hose or something.
Q: All right?
A: So, more or less all over, like dripping wet.
Q: Okay, and when you curled up, were you still presumably on the roadway; were you?
A: Yes I was.
Q: All right, and what happened to you then?
A: I believe that I really--I was totally incapacitated--I believe I was grabbed by several Police Officers and led over to the left hand side of the road. From this point onwards I didn't have any vision, so this is just based on my other senses.
Mr. Wolinetz said he expected the police would ask the protesters to leave and that any who refused would be arrested. He said he assumed that this would be done with sufficient time so as not to interfere with the schedule for moving the visiting leaders to wherever they were going. He believed that as long as nobody posed a physical threat no force would be used. Mr. Andrew Donald was a UBC student in residence at Place Vanier. He came out to see what was taking place. He said that the majority of the protesters obeyed S/Sgt. Stewart' s directive and got up to move away but some of them chose to stay. He said a lot of those who got up to move were struck with pepper spray.
The foregoing review prompts me to raise and answer two questions. I will then consider additional matters arising out of the Gate 6 incident, including the manner of the deployment of the pepper spray, the movement of the protesters up University Boulevard, the spraying of Robert Douglas, the arrest of Mr. Brooks and the decontamination procedures that followed the arrests of Mr. Wolinetz, Mr. Brooks, Rex Bailey and one other.
28.1.1. Use of Force
I will paraphrase the two critical questions framed by Commission Counsel:
1. Did S/Sgt. Stewart give the protesters enough time to comply with his order to move, considering all of the circumstances? 2. Was S/Sgt. Stewart' s use of pepper spray at that time a justifiable or appropriate use of force?
28.1.2. Were Protesters Given Time to Respond?
Since the moment that this Commission closed its final session on June 30, 2000, I have not had the slightest doubt that the answer to the first question is a clear and unequivocal " no." S/Sgt. Stewart did not give the protesters enough time to move before releasing the pepper spray.
In the nine or 10 seconds from the start of his directive until he pressed the lever, all those seated on the road could not possibly have risen and moved beyond the range of the spray. Many were sprayed even though they did not wait for S/Sgt. Stewart to complete his remarks before making their move. Those who waited until his directive was completed before deciding what to do were doomed. For them there was no escape.
I believe Mr. Wolinetz when he said that, when he saw the can of pepper spray, he had pretty much decided he was going to leave but was not 100% settled in his mind. He and the others still seated on the road – it appears there were four others but there could have been one or two more – should have been given the opportunity to decide what they wanted to do in light of the firm, forceful and decisive message delivered by S/Sgt. Stewart as he stood before them with the large canister of spray in his hand. Sgt. McLaren, who stood in the front line with S/Sgt. Stewart and Sgt. Mercer, said that, on his arrival, he had his Mark 46 canister in his coat with his hands free. As they approached the line, he could see some starting to get up but there were some sitting without moving at all, so while S/Sgt. Stewart was addressing the protesters, Sgt. McLaren said he took out his canister to show the people that he was armed with pepper spray as well.
It will never be known what would have happened if S/Sgt. Stewart had waited up to a minute and repeated his warning. While S/Sgt. Stewart believed that the intentions of the two protesters who began moving their clothing over their faces were clear, that cannot justify the precipitous spraying. The other three should have been given more time and even those two protesters, with more time, might well have changed their minds.
The facts are clear: S/Sgt. Stewart did not give the protesters enough time to comply with his order to move.
28.1.3. Was Pepper Spray Justifiable?
I now turn to a consideration of the second of Commission Counsel' s questions: namely, whether S/Sgt. Stewart' s use of pepper spray was a justifiable or appropriate use of force.
I have found that S/Sgt. Stewart' s use of pepper spray on two previous occasions, one earlier the same day and the other on the late afternoon of November 24, were justifiable and appropriate uses of force. In those two situations there was violence, with a possibility of its escalation. The protesters at the flagpole at the time of the Malmo-Levine arrest and those at the centre of the November 25 noon rally were not passive and peaceful, as I accept the Gate 6 protesters were. I view that difference as being of major significance as I answer the second question.
After police presence and then dialogue, which in this instance was really a monologue, S/Sgt. Stewart saw his options as being " open hand techniques, which includes OC spray" and then " closed hand techniques" which he said would be inappropriate. Sgt. Mercer was asked about levels of force:
Q: Sir, what level of force is available to you prior to using pepper spray?
A: Conversation and open hand.
Q: And when you say " open hand" , what do you mean by open hand?
A: Physically lifting, pushing, leading.
S/Sgt. Stewart explained his objection to lifting people up and carrying them away:
Well, lifting people and carrying people causes two types of injuries. Injuries to the individuals that resist as they passively resist and go limp, and injuries to police officers who try and lift them. When people are locked down in that position and you have to use pain compliance holds to get them off and move them, there' s a high potential for injury.
In assessing the appropriateness of the police response, I have to assume that about five people would have remained on the road. Had a reasonable period of time been given to comply with the directive, the number may well have been less. I have difficulty in appreciating why some of the 40 officers present could not have used the " open-hand" technique identified by Sgt. Mercer to quickly and successfully move those five people off the road and, if necessary, restrain them until the motorcades had passed. I find considerable assistance in resolving that difficulty in the following evidence of Insp. Ryan which I accept:
Q: I' m going to ask you to assume that prior to any significant interaction with the police, protestors have indicated that they' re there for a peaceful protest. According to standard police practice, if protestors are seated on a road and they' ve expressed an intention of peaceful protest, what are the options available to the police?
A: Initially, tactical communications; no compliance, then arrest
...
Q: Now, I' m going to ask you to assume that the--some protestors may have chosen to remain on the road in order to be arrested. When the police are dealing with a situation where they understand that some protestors will not agree to be removed, what are the strategies or tactics available to the police, according to standard police practice?
A: Tactical communications, empty-hand techniques, and if there' s compliance, then they' re removed. If there' s not compliance, then the force level escalates on the part of the police and can include OC spray if there is active resistance. If the behaviour by the individuals changes to the point where it becomes assaultive, then of course, the police tactical options increase accordingly.
Q: According to standard police practice, if the protest behaviour is only passive resistance is OC spray an option?
A: No
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Q: I' m assuming 40 to 50 protestors being present and a minimum of 30 police officers being present. And based simply on those numbers of individuals there, does that limit in any way the options available to the police according to standard police practice?
A: No, not at all. Numbers of police officers and numbers of citizens, if I understand you correctly, they' re almost equal?
Q: Close to it, but I' m asking you to assume that at a minimum that there' s 10 to 20 more protestors there than police.
A: It doesn' t limit the tactical options available to the police. Certainly it would assist with the number of the--the tactics that the police would employ and could employ. And not limiting them, it actually creates more options for the police--
Q: All right--
A: –-because of the--the almost equal number.
Q: Could you explain to the Commissioner what the tactics would be that would be added--or would expand the range of tactics?
A: Now, you' re talking about a situation where police officers--it' s a concept called economy of force. You could detail two officers to effect arrests of passive-resisting protestors. And because of the--you' re talking 40 demonstrators and 30 police officers, there' s a reduced risk of retaliation by the crowd to the--to the arrest of those people, in terms of the number of police officers you need to--to maintain control of that scene.
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Q: Now, assuming that a police officer has given a clear and direct command to protestors to leave the roadway, and assuming that that officer is acting under a time constraint of no more than five minutes, is there a police practice that would indicate how much time the protestors should be given to either respond--or--or to respond to the--the command?
A: The practice is to allow as much time as possible for people who received the verbal warning, to act on it. Because of the short time line, that would be somewhat restrictive. However, you still need to have--to give people time to react to your warning.
Q: And assume that, once the command is made, it' s possible to view some protesters moving from the roadway. Would that militate in one direction or another, as to how much further time should be given to the protesters to react?
A: I think so. That' s--that would be indicating that there is a--the desired effect of the warning is happening on those individuals. And certainly, it would require the opportunity for other people to act in the same manner.
Cpl. James Dickson was assigned to assist S/Sgt. Stewart in his Quick Response Team duties. He agreed that when dealing with political protests or people who are trying to make a point, and subject to existing circumstances, the standard RCMP routine is to physically move people off the roadway. This can be done either by leading the person by the arm, or by the use of collapsible stretchers. There was one such stretcher in each of the two vans that were parked a very short distance from the police line. However, S/Sgt. Stewart' s view was that his timetable did not allow for their use. I am not certain that is so nor am I certain that their use would have been necessary for the removal of the few who remained on the road.
Cpl. Dickson said the stretchers were used by the RCMP in British Columbia to move uncooperative people over distances that create difficulty. The distance involved here was minimal and the terrain did not present a problem.
Before stretchers were available, Cpl. Dickson said, the practice was for officers to physically take hold of uncooperative protesters and move them off the road. That method remains an option .
I have considered the RCMP policy on the use of force and the RCMP' s National Operational Manual and Incident Management Intervention Model. Since the Model was adopted as RCMP policy in May 1997, the RCMP' s use of force policy is no longer given as a continuum but, rather, a list of options available to an officer. It is not necessary to go through a progression of escalating force options before an officer may act.
Undoubtedly it was S/Sgt. Stewart' s limited time frame that caused him to go so quickly to the use of OC spray. He was not bound by policy to do so. Indeed, his immediate use of it was contrary to standard RCMP procedure regarding political protests. No violence was evident. While S/Sgt. Stewart had the experiences of earlier in the day clearly in his mind, the passive nature of those seated on the roadway had not been communicated to him. He nevertheless should have taken advantage of the technique identified by Sgt. Mercer, that is, physically lifting or leading the protesters away, as being an option to the use of pepper spray.
I can only conclude that S/Sgt. Stewart' s use of pepper spray on that occasion was not a justifiable or appropriate use of force.
I have no difficulty with the three officers taking the three large canisters to the line with them. The experience of the preceding 24 hours had shown the effectiveness of that weapon when police were faced with violence. There was reason for them to be ready to meet that kind of behaviour and a display of available force had the potential to be effective in itself. I believe, however, that with the time available, at least one minute could have been given in addition to the one or two seconds that passed after S/Sgt. Stewart completed his warning to the crowd. If the few remaining persisted in their refusal to leave, there were enough officers with the required experience to physically remove them. That could and should have occurred without resort to the use of pepper spray. Pepper spray was not required to move the protesters. It should not have been used.
28.1.4. Absence of Leadership and Support
The position S/Sgt. Stewart found himsPaelf in as he faced the protesters on that road was the result of the same ineptitude and inadequacies that had caused panic to reign at Command Centre and in senior RCMP ranks on the UBC campus from the moment that afternoon that it sunk in that the world leaders were captives behind blocked exits and that there was no plan in place to address the resulting crisis.
S/Sgt. Stewart was at that time a man under stress. He acknowledged that " there certainly was a degree of pressure to do the job." According to Insp. Killaly, there was " definite pressure on Staff Sergeant Stewart to clear that road and to clear it quickly."
Insp. Ard saw the availability of S/Sgt. Stewart and his Quick Response Teams to open Gate 6 as " a gift from heaven." If indeed it was, S/Sgt. Stewart might have expected it to be supplemented by some earthly guidance from those in command. There was none. Rather, he was given a matter of minutes to achieve the objective set for him. He was told to go and get the job done.
Deputy Chief McGuinness had referred to the possibility of stacking the motorcades at the Museum of Anthropology if the two busloads of officers from downtown had not arrived at Gate 6 by the posted departure time, and yet no thought was given to implementing such a contingency plan while S/Sgt. Stewart completed the assignment handed to him. As I have indicated, neither Dep. Chief McGuinness nor Supt. Casey, who earlier in the afternoon had expressed reservations about delaying the departure of the motorcades, were aware that S/Sgt. Stewart had come to the rescue. Commission Counsel correctly summarized the expert evidence on the option of delaying the departure of the motorcades:
C/Supt. French said that if there were only four or five minutes to clear Gate 6, the first tactical option would be to stop the motorcade from coming to that area until it could be secured. He would also expect that this would have been considered in the planning stages and that there would be a clear protocol in place to stop the convoy from coming.
C/Supt. Milton testified that, if the roads were blocked, he would want them cleared as soon as possible. He said that a delay of the motorcades for five or ten minutes is reasonable, although he would still have to provide an explanation to the delegations.
S/Sgt. Stewart said it had not occurred to him that it might be possible to delay the departure while he carried out his task. In any event, such a delay would not have been his decision. He was outside the command and policy loop.
Command Centre, which was responsible for the site at this time, was not in contact with the members at Gate 6 other than through watching the aerial pictures. Insp. Killaly testified that he had no discussions at any time with Command Centre about clearing the blockage at Gate 6.
In my judgment, once the decision was made at Command Centre to clear Gate 6, those holding responsibility at the Centre ought to have, for security reasons, put in motion a chain of events that could have resulted in a short delay in the departure of the motorcades if appropriate. That did not occur. Certainly it would have required communication between Command Centre and the officer in command at the site, of which communication there was none, in order to give S/Sgt. Stewart additional time to accomplish his objective. The conduct of RCMP members in failing to make contingent arrangements to delay the departure of the motorcades until S/Sgt. Stewart had the opportunity to clear the road in a reasonable manner was not appropriate to the circumstances.
The fact is that the first motorcade did not arrive for 10 minutes after the clearing of the Gate 6. This was of course unforeseen by S/Sgt. Stewart but, with all of the radio and phone communication systems available, I am unable to accept that the motorcades would ever have been sent down Northwest Marine Drive until it was known that the passage was clear and S/Sgt. Stewart should have been made aware of that.
S/Sgt. Stewart stepped forward into a difficult situation, without the support he ought to have had from the group of commissioned officers who for months had been in the forefront of preparing for the events of this important day.
In addition, the conduct of members of the RCMP that led to the use of pepper spray on this occasion was not appropriate to the circumstances. While S/Sgt. Stewart was the officer on the firing line who first used the pepper spray, followed immediately by Sgt. Mercer, there were others who put them in that position and they must bear major responsibility for this regrettable incident.
28.2. Lack of Communication
When asked whether he had recognized Cpl. Flamank at the site, S/Sgt. Stewart replied: " I don' t know Corporal Dave Flamank." And yet he was a Zone Commander in the area S/Sgt. Stewart was entering. Cpl. Flamank had been at Gate 6 long enough to have formed an impression of the protesters that was very different than had been communicated to S/Sgt. Stewart back at Gate 3.
Insp. Killaly did have a brief conversation with S/Sgt. Stewart on his arrival, in which he basically repeated the instructions S/Sgt. Stewart had already received from Insp. Dingwall – that the road was to be cleared immediately. They did not discuss the method to be used. Insp. Killaly said he trusted S/Sgt. Stewart' s " judgment and skill that he would go up there and clear it."
Insp. Killaly knew nothing of Command Centre assuming control of the operation. It was his belief that Supt. Thompsett had remained in command throughout and that he, Insp. Killaly, was effectively the commanding officer at that spot. He had gone to Gate 6 on instructions given to him by Supt. Thompsett prior to Supt. Thompsett having been relieved of his command. As a result of a call from Supt. Thompsett, Insp. Killaly said he came to realize that Gate 6 could be used as an exit route for the leaders but he acknowledged that he was not briefed that day on what exit route had been originally planned.
In their closing written submission, Commission Counsel correctly summarized evidence of Insp. Ryan and Acting Sgt. Jay Quinlan on the subject of the communication among offices on the scene that might have been expected:
Insp. Ryan testified that it would have been prudent police practice for S/Sgt. Stewart to have spoken to the QR Team leaders already present at Gate 6 upon his arrival, regardless of any information S/Sgt. Stewart might have already possessed. A/Sgt. Quinlan testified that, if protesters had communicated to police that they were there to be peaceful and would be passively resistant, it would be standard and prudent police practice for the officer in charge of that area to notify the incoming police Unit if it was relevant. The officer already at the event should approach the incoming officer.
Chief Supt. French agreed and said that the officers already at the scene should have briefed the incoming officers.
I believe it was a very serious error that, at the time of his arrival, there was no discussion between S/Sgt. Stewart and the officers at the site regarding what he was facing in terms of the conduct and intentions of the protesters. I am satisfied that S/Sgt. Stewart arrived with the intention of opening the road with the use of pepper spray if he did not get an immediate and positive response to the police presence and his firm, forceful and decisive directive to the protesters to clear the roadway.
He should have been made aware of what Mr. Brooks had told Cst. Potvin and what she and other officers heard Mr. Brooks say to the protesters. Likewise, the mood and behaviour of the protesters, as assessed by many officers including Insp. Killaly and Cpl. Flamank, should have been communicated to S/Sgt. Stewart. Had he become aware of the assessment of the crowd by officers Potvin, Killaly, Flamank and others he might have abandoned his belief in the " resistive nature" of the protesters. Had that occurred, his approach to dealing with them and opening the road may well have significantly changed – as it ought to have done.
The conduct of the RCMP members that allowed the serious error that I have identified to occur was not appropriate to the circumstances.
I view this very serious breakdown in communications as part of an afternoon of overall confusion which had its roots in the ill-suited planning structure put in place for the APEC conference and the manner in which that structure was administered by those holding planning responsibility. At that very critical time, there was nobody at Gate 6 with leadership responsibility who had any in-depth knowledge of the arrangements for the leaders' meeting that had been in the planning process for most of the previous two years.
28.2.1. How the Pepper Spray was Used
The manner in which the spray was dispersed was criticised by the complainants. Complainants' counsel stated:
The method of OC deployment contravened established protocol. It should have been fired in short one-second bursts, and at distances no closer than fifteen feet, to avoid eye damage from the container' s pressurized contents.
S/Sgt. Stewart explained what he did:
Q: So do you recall then, dispersing the OC?
A: Yes, I did. I dispersed it in a serpentine pattern.
Q: What' s the significance of a serpentine pattern?
A: It' s one of the three that I teach. That' s one of the three methods of dispersing OC, to ensure that the persons that you--the direction of the aerosol, and the aerosol is delivered to the area where you want it delivered, sufficiently so that it works.
Q: And what--what area, as you' re standing there, what area was it that you wanted to spray into?
A: The persons on the ground and the persons moving down.
S/Sgt. Stewart said that he sprayed for one second, which resulted in the release of 75 millilitres of OC spray in solution which he said would be about three ounces or slightly less than half a cup. He said it is very difficult to release spray for a period of less than one second.
Sgt. Mercer explained what he did:
Q: And who were you directing your spray at?
A: No one in general, I' m just over the heads of the seated crowd, in--just in a sweeping motion.
Q: All right. And what was the goal that you were trying to achieve by doing that?
A: Making that intersection an uncomfortable place to be and so that the crowd would move off.
Sgt. Mercer said he was perhaps 10 feet from the nearest protester at the time. He said he did not direct the spray at any individual and nobody was hit point-blank by his spraying. It dispersed a volume of spray that went over their heads and filtered down.
Sgt. McLaren did not see the start of the spraying because he had turned his back on S/Sgt. Stewart and was reaching down to a man seated on the road and asking him to move. It was then that S/Sgt. Stewart and then Sgt. Mercer released their spray. He said that some who had been sitting moved off towards University Boulevard and some were just standing there – some at the intersection and some on the Boulevard. He said that 20 of them were standing in front of him and he pepper sprayed in their direction. He said his purpose was to cover the area in front of them with a cloud of spray that would discourage them from coming back into the intersection.
Sgt. McLaren said the people then turned and headed up University Boulevard. S/Sgt. Stewart told him that that was enough spray to dispense.
Expert witness Sgt. Douglas Ashton viewed the many videotapes of the spraying and studied what had occurred. After viewing the scene on video in slow motion, frame by frame, he was asked to comment on the actual deployment of pepper spray by S/Sgt. Stewart and Sgt. Mercer. I believe that he arrived at a well-reasoned assessment and I accept his explanation of the events:
Q: Now you see the motion--
A: Yes.
Q: –-of Staff Sergeant Stewart' s deployment method; can you comment on that?
A: Yes. It appears to me that the--the use of the OC here is in an indirect manner and it' s covering a large area, so that--now I can' t see who is actually in front or where the individuals happen to be and there may be some direct application there. I' m--I' m not too sure about that, but the motion of the--of the OC is covering a large area so it' s going to be doing a couple of things. First off, it' s going to be creating a cross-contaminated environment that' s going to be causing respiratory effects that are going to be there. The other thing, there is a potential that a person could be directly contaminated with this because they just may be in a spot and end up being directly hit with the OC in the eyes and we can see effects there. ...
Q: Now, assume for a moment that there are seated in front of Staff Sergeant Stewart, several protestors.
A: Yes.
Q: And it' s hard to gauge the distance, but you can guess they' re-- they' re not far from him--
A: Yes.
Q: –-according--just assume that for a moment. And his deployment method that you just commented upon, at that range, is that deployment of a Mark 46 canister in accordance with prudent and standard practice for crowd dispersal techniques when you' ve got subjects that are seated fairly close in front of you?
A: A direct application in that particular case--and, again, I don' t know the exact distance that exists here, but a direct application would be of concern because of the volume of the unit, the pressurization of that particular unit, whereas an indirect application would be a reasonable type of usage. And that would be to the--the ground, clothing and air that I had described earlier.
Q: And does that comment apply in situations where you' re assuming as well that a fairly large number of the crowd is actually compliant as opposed to resistant?
A: Well, the OC is going to be used for two purposes here. One is to deal with the core resistant group that exists in front of Staff Sergeant Stewart. The other is going to be to create an environment that is cross-contaminated in which individuals are not going to want to reoccupy that particular area, as well as the psychological impact that it' s going to have that the group would not want to reoccupy that because of the potential of being OC' ed.
Sgt. Ashton then commented on Sgt. Mercer' s deployment methods:
The--the OC that is being utilized here, I' m not too sure--whether it is a direct application or an indirect application of the OC here. My understanding is that the OC is being deployed for the purposes of once again creating a cross-contaminated environment and to, you know, move individuals and prevent them from coming back into that particular area, which would be, you know, a reasonable course of action under those circumstances.
Finally, Sgt. Ashton expressed his view of the spray released by Sgt. McLaren:
Well this seems to be another in--indirect application of the OC to, you know, create a cross-contaminated environment and particular to the left side as the officers are facing the intersection that they are dealing with. And the OC has a large quantity obviously that is coming out here to be suspended into the air and to be carried and used in this manner. As well, I would expect that we' re dealing with a psychological impact on the crowd, as well, here.
Acting Sgt. Quinlan said that the manufacturer of the Mark 46 canister recommended a minimum distance of 12 feet for using it directly to the eyes. He said that did not mean that it cannot be used from a distance of less than 12 feet if the circumstances render it necessary and if the officer perceives that it is necessary to use force at that time. Acting Sgt. Quinlan commented on S/Sgt. Stewart' s serpentine spraying method:
Q: All right. And I' m just going to play you the videotape a bit further and I' m going to ask you to pay particular note to a sequence of--or series of frames after the video camera itself has received some form of fluid on the lens.
A: That--that--that spraying action there is consistent with a crowd control motion of using that type of unit. In--in a serpentine fashion, where the spray is used in an up and down sweeping motion, with not an intention of direction contamination, but an intention of contaminating an area as opposed to individuals.
I have no doubt but that the extensive spraying received by Ms. Neyedli before she left the roadway in front of the police line, and by Mr. Wolinetz while he remained seated on the road, came from S/Sgt. Stewart' s canister. This is consistent with S/Sgt. Ashton' s evidence. I have no doubt at all that, in spite of S/Sgt. Stewart' s indirect spraying, Ms. Neyedli and Mr. Wolinetz received a direct application of pepper spray. So did CBC cameraman Rob Douglas, who was operating the camera that took the video played to Acting Sgt. Quinlan and which, as counsel noted, " received some form of fluid on the lens." Sgt. Mercer established that, when he used his canister, he was perhaps 10 feet from the nearest protester. I believe it is likely that S/Sgt. Stewart could have been even closer given the results.
I accept Sgt. Ashton' s evidence that officers Mercer and McLaren used their spray not directly at protesters but to produce a contaminated environment that would move them along and prevent them from returning to the area that had been sprayed.
The manner of spraying was likely not a textbook example of correctness. I have found that direct application of pepper spray occurred and that the distance involved likely did not conform with recommended procedure. Nevertheless, considering the circumstances under which the spraying occurred, I do not find any inappropriate conduct in the manner in which the spray was dispersed.
28.2.2. Cameraman Sprayed
Mr. Douglas was close to the front line of the protesters, trying to capture the events of the day on his camera. He was sprayed in the face by S/Sgt. Stewart' s canister. Mr. Douglas explained that he thought S/Sgt. Stewart' s directive to the protesters did not apply to him:
Q: Okay. Why didn't you get off the road, when the instruction was given?
A: I didn't think that he was going to use any kind of force at all.
Q: But, in fact, he said just that, didn't he? That I--
A: To the students--
Q: I' m sorry?
A: To the students, not to me.
Q: But, sir, do you think that when you' re in that situation, right among the protestors, that your situation is notably different from the protestors?
A: Yes, I do. I do.
Q: But wasn' t it clear to you, that the object of the exercise, from the Police perspective, was to clear people off of the road?
A: The students.
Q: Well, but he didn't say, this is for students, did he?
A: No. But, my assumption was, I continue doing my job, this is the way we work with the Police forces, many times, until instructed that I have to vacate the area, to me personally--
Q: So--
A: –-I didn't get that instruction. I assumed he was talking to the students and I continued to shoot. No one said to me personally, you better get out of here. Nothing like that.
Q: So is it your view, that in order for that instruction to have application to you, Stewart must say to you, you cameraman, get off the road? I' m speaking to you as well as the other persons on the road?
A: If you view the videotape, you' ll see later on that, in fact, he does say that to another cameraman on another videotape. So, yes, that' s my assumption.
Q: And that was the assumption that caused you to conduct yourself, as you did there?
A: Yes.
In any event, Mr. Douglas was not singled out for special attention by S/Sgt. Stewart.
Mr. Douglas was definite that S/Sgt. Stewart had made eye contact with him and then sprayed him. S/Sgt. Stewart had no recollection of seeing Mr. Douglas at the scene until after the spraying. I believe they were both telling it as they believed it to be. Unquestionably, Mr. Douglas was there for S/Sgt. Stewart to see. I have no doubt that S/Sgt. Stewart' s eyes passed over those of Mr. Douglas as he delivered his message and then pressed the lever. As I have said previously, S/Sgt. Stewart was a man under stress and I have no difficulty at all in accepting the fact that he has no recollection of the presence of Mr. Douglas amongst the students, even though he was attired in a bright red jacket. Mr. Douglas was fixed on S/Sgt. Stewart. S/Sgt. Stewart was fixed on many. I accept S/Sgt. Stewart' s evidence that he did not intentionally target Mr. Douglas with his spray.
Mr. Douglas was well looked after as far as decontamination was concerned. He had continued to shoot the events until the pain overwhelmed him. A police officer gave him water for his eyes. When that ran out, Mr. Douglas' soundman took him to some students who provided more water. He again exhausted the supply but at that point Cst. Fulks, the RCMP paramedic on site, gave him saline solution for his eyes. Soon after that, an ambulance arrived and the paramedic attendants pumped saline into his eyes. He said he was out of commission for 16 minutes or so but was able to get back on the job in time to shoot some of the motorcades going by.
S/Sgt. Stewart gave evidence about the apologies he made to Mr. Douglas while Mr. Douglas was undergoing treatment:
Q: Tell the Commissioner, please, what you can of your dealings with Mr. Douglas subsequent to the spray incident?
A: I apologized twice to Mr. Douglas. I apologized to Mr. Douglas when he was on the east side of the roadway, and being treated by Constable J. Fulks, who was administering first aid. Later--
Q: Let me just ask: Was Fulks present, to your knowledge, when you--you spoke the words?
A: Yes, he was.
Q: All right. Go ahead.
A: Sometime later, after Mr. Douglas had been dealt with by the bicycle medics and after he had been dealt with by the Ambulance crew in the Emergency Health Services Ambulance, he was seated on the back of the Ambulance, the doors were open, and I went over and apologized to him there.
Q: Do you recall what you said?
A: I said, 'I' m sorry, it shouldn't have happened and I apologize'.
He advised me that it was not – I can' t remember the exact words – but it was part of the job, essentially. And I advised him that I didn't think it was and offered to buy him lunch.
Mr. Douglas said that he did not recall seeing S/Sgt. Stewart until after the motorcades went by. He recalled nothing of the two visits that S/Sgt. Stewart said he made to him. I believe Mr. Douglas when he said he had no recollection of the visits. He acknowledged:
It was very chaotic, there were dogs, bullhorns screaming. If Mr. Stewart apologized, I didn't hear his apology, but I think I would have remembered a conversation like that but I--I honestly just don't recall that at all.
After questioning S/Sgt. Stewart at some length about the apologies, Complainants' counsel challenged him further:
Q: Sir, I put it to you that those two incidents did not happen. That you did not apologize to Mr. Douglas; do you agree?
A: Sir, I am emphatic in my testimony. I recall it specifically. I did, and as I say, there are witnesses and I urge you to seek those witnesses out and speak to them. And I' m sure that will put your mind at rest.
Q: I suggest to you, sir, that you have made that up, in order to make yourself look better; do you agree?
A: No.
Mr. Jeffrey Watts, one of the paramedics with the B.C. Ambulance Service who treated Mr. Douglas, gave the evidence on the subject:
Q: All right. So this was your last treatment of somebody from pepper spray of the day, is that what--
A: That' s as far as I remember, yeah.
Q: All right. And what happened then?
A: Well I--I was getting him cleaned up and an RCMP Officer came up on my left side and started to talk to--to my patient. He said something along the lines of I' m sorry, I didn't see you standing there. The patient responded with something like it' s a hazard of the job, and the RCMP Officer then said, no I--I mean it, I' m sorry, I want to buy you lunch when this is all over. And the reason I remember it, is I was about to make a stupid comment of, oh good, am I included too. And I bit my tongue and--and didn't say it.
Q: All right. Do you recall any further conversation between them?
A: No, not at that point. When I finished the gentleman got up and picked up his camera and seemed to go back to work.
Q: Okay.
A: There was a lot of other activity going on, he seemed anxious to get back to using his camera.
Q: All right. And prior to this event, where--had you seen either of these individuals before?
A: No.
Q: And since, have you met any of them, either of them?
A: No.
Q: All right. I take it you' ve subsequently come to know the--the RCMP officers that you' ve described. Where do you--where do you--do you now recognize him from somewhere?
A: I' ve seen him on TV, identified as Staff Sergeant Stewart.
I am satisfied without any doubt that S/Sgt. Stewart extended the two apologies to Mr. Douglas. Counsel for S/Sgt. Stewart asked that I conclude that his client expressed a real and meaningful apology to Mr. Douglas. I have absolutely no hesitation in so concluding. The suggestion put to S/Sgt. Stewart to the contrary was understandably offensive to a decent man.
28.3. Moving up University Boulevard
The police moved the protesters up University Boulevard under the direction of Sgt. McLaren. As this was happening, Sgt. McLaren concluded that a small crowd to his left was working its way back down towards Northwest Marine Drive so he released what he described as a big cloud of spray that would prevent those people from coming through. He said that there were no protesters in the area at the time and that, with the cloud there, the protesters never came any further forward.
Sgt. McLaren then yelled at the officers to form a line across University Boulevard and he directed some of the officers to cover off the flanks on either side, although on the left side the Place Vanier fence formed a natural barrier. Cpl. Stanley Szelagiewicz estimated that the line was formed about 100 feet up University Boulevard from where it intersected with Marine Drive. With the police line formed in the stationary position, the protesters ceased their forced retreat and stood and faced the police line. That was a reasonable decision for the protesters to make and exactly what one would have expected them to do in the circumstances. There was no reason for them to believe that the police required them to move any further up University Boulevard. Sgt. McLaren said that he considered the police line he had created as temporary and that he intended to move it still further up University Boulevard because, if something were to happen, the police would have more time to react if the crowd was further away from the intersection through which the motorcades were to pass. Before he gave any further direction or made any additional move, however, S/Sgt. Stewart took over command of the line.
Insp. Killaly told S/Sgt. Stewart that he wanted the line moved further up University Boulevard to the gate at a construction area where a maintenance project was located. Insp. Killaly believed that the crowd of protesters might grow and that the police would be in a better position if there was more space between their line and the intersection with Northwest Marine Drive. Some stones from the construction site and some mud had been thrown in the direction of the police line.
Before S/Sgt. Stewart gave the order to move the line back still further, he saw Mr. Brooks facing the protesters, his back to the police, talking to the protesters through his megaphone. S/Sgt. Stewart then moved at a fast pace through the police line, through the open area between the police line and the protesters and, with his arms, encircled Mr. Brooks from the rear, marched him back to the police line and passed him off to other officers who took him to the ground and handcuffed him. As S/Sgt. Stewart carried out this arrest, the same pepper spray canister that he had employed moments before discharged and sprayed Mr. Brooks in the face, on the side of his head, on his chest and on the upper portion of his body. S/Sgt. Stewart said that the discharge was accidental and happened because he was holding the canister at the same time that he made the arrest. I accept that explanation.
28.3.1. Mr. Brooks' Arrest
I believe Mr. Brooks who said he repeatedly told the officers who held him in custody: " I' m not resisting arrest." I believe that because, from observing Mr. Brooks on the witness stand and from watching and listening to the videotapes of him speaking at the intersection just before S/Sgt. Stewart arrived and also just before his arrest, I have concluded that Mr. Brooks is a very, very mild mannered man who did not intend to either cause or participate in any acts of violence.
This raises the question: why was he arrested and taken into custody?
Cpl. Stanley Szelagiewicz recalled that people were chanting and waving placards and one male was using a megaphone. That was Mr. Brooks. Cpl. Szelagiewicz gave evidence about Mr. Brooks' arrest:
Q: You' ve referred to seeing a fellow with a megaphone, who we know was subsequently arrested; did you witness that?
A: Yes, I believe it was Staff Sergeant Stewart that arrested him.
Q: Where were you when that occurred?
A: I would have been in the front ranks still.
Q: And did--did you know that was coming, did Staff Sergeant Stewart say anything about arresting this fellow, or did it just occur?
A: I--I don' t recall him saying anything, that I overheard anyway.
Q: All right. From what you observed, could you--could you--was there something in particular that this fellow with the megaphone did, that appeared to you to relate to his arrest?
A: Nothing that I observed personally. I--he was moving around quite extensively throughout the crowd and he was fairly close in front of our ranks at one point in time. But the reasons why, no I--I didn't observe any.
Cpl. Szelagiewicz clearly did not know why the arrest occurred.
Bruce Walkinshaw was a student at Langara College. After attending morning classes, he took an afternoon bus to UBC to join the demonstrations. He had been at the intersection when Mr. Brooks had spoken before the road was cleared and he was with the protesters addressed by Mr. Brooks on University Boulevard. He said that, on the first occasion, Mr. Brooks had made it clear that the police were not the enemy and that they were not the reason for the protest. He said that on neither occasion did Mr. Brooks speak aggressively and he found what he said to be very logical and sensible. Mr. Walkinshaw was at a loss to explain Mr. Brooks' arrest. He said that Mr. Brooks was not doing anything and, at the time, he thought to himself: " why did they grab him?"
Ms. Hunter was also with the protesters facing the police line. She said that when S/Sgt. Stewart came through the line and grabbed Mr. Brooks around the chest, Mr. Brooks was talking on his megaphone, emphasizing that the protesters were there for peaceful protest and that there was no need for pepper spray as there was no intention of being violent. Mr. West described what he saw and heard immediately before Mr. Brooks' arrest:
And the police stopped and formed a line there. And Mark, at this time, was yelling through the megaphone for everybody to stop to turn around, to not let them sort of scare us away, that this was our space. And he said, everybody stop, turn around. I think if he could have, he would have tried to get everybody to sit down. I don' t think anyone was in a mood to be that hard to move. And he stopped everybody and we turned around and we faced the police and we started chanting again. And Mark kept talking through the megaphone saying things to the effect of, We didn't provoke this attack, everybody remain calm and peaceful but stand your ground.
Mr. Brooks described his experience:
Q: Did you still have your megaphone?
A: I did have the megaphone, yeah. And so at that stage, again people were justifiably angry, upset. They' d been hurt. They' d seen their friends assaulted. And it was potentially very volatile, and I felt that I had some responsibility, because I had the megaphone still. So I felt that I had to do something, and--
Q: What did you do?
A: I tried to--to make the situation--I tried to calm everybody down, basically. I didn't want the situation to get any worse than it already was.
Q: So how did you try to calm everything down?
A: I said that let' s not make this any worse than it already is. This is not our fault. We did not provoke this. The police are totally responsible for what just took place. Let' s not respond. Let' s continue to be peaceful. Let' s continue to be non-violent. Those kind of themes, I' m paraphrasing, but I remember clearly that that was the gist of what I was saying.
Q: And what happened next?
A: Again, there was a line of police that were across the road on University, and then there were the protestors a few yards facing them further up University. I had the megaphone at that point, so I went to the front and then I walked back and forth in front of the police, facing the protestors, not facing the police, not directing any comments toward them. Talking to protestors, saying, let' s calm down, let' s not let this get out of control. This is not our fault. We didn't do anything wrong. And then all I remember is being grabbed from behind, wrestled to the ground and pepper sprayed. I estimated that I had two or three officers on me at that time.
While the audio reception on many of the videos was of poor quality, Mr. Brooks was captured on one of them speaking to the protesters over his megaphone at this time and place in a manner consistent with his evidence. He was recorded as saying:
Take it easy. We don' t want it to get any more out of hand. We were totally peaceful. We did nothing to provoke this.
I believe and accept the evidence just referred to as given by Cpl. Szelagiewicz, Mr. Walkinshaw, Ms. Hunter, Mr. West and Mr. Brooks.
I listened carefully to the explanation given by S/Sgt. Stewart for arresting Mr. Brooks. I have read and re-read the transcript of his evidence a number of times. Based on the relevant portions of that transcript, I have concluded that S/Sgt. Stewart knew nothing of Mr. Brooks' manner, nor of the nature of the message Mr. Brooks was communicating over the megaphone to the protesters. Rather, with megaphone in hand, Mr. Brooks was seen by S/Sgt. Stewart as the leader of the pack, rallying the crowd, and S/Sgt. Stewart " was concerned that something may occur from that," that is to say, from his " rallying the crowd." The portions of S/Sgt. Stewart' s evidence on the basis of which I reach these conclusions are as follows:
Q: Now, what did you know about the person in 1:51:44:13 before you evidently grabbed a hold of him?
A: I knew that he was rallying the crowd. I knew that I had been just ordered to move the crowd back further down the road by Inspector Killaly. I knew that they had stopped there on their own and that he, as a--was rallying them at that point.
Q: Well, what do you mean by " rallying them?" . Rallying them to do something that' s contrary to law or rallying them to move back or what was he rallying them to do?
A: He certainly wasn' t rallying them to move back at all, sir.
Q: Well, did you hear the words that he was uttering?
A: I heard the words but I don' t recall them.
Q: I see. Well, what was the nature of the words, do you remember that?
A: I don' t know the specific words but I know that my sense of my hearing those words were that the crowd had stopped here; that we were required to move them back farther down the road and that he was leading them there and holding them there.
...
Q: Well now, did you cause this person in the picture, in your arms, to be arrested?
A: I physically arrested him, yes, sir.
Q: And what was the offence that you were arresting him for?
A: My personal view was he was continuing to obstruct us and continuing to block the roadway.
...
I moved through the crowd, or through the line of Members, I had been advancing, heard a person speaking on a bull horn, in my mind, rallying the group. And the bull horns had, as with other disturbances that I have attended, are--you might call them a badge of generalship, they' re used to--by the persons that are in charge, the organizers. And as such, I felt it appropriate to arrest Mark Brooks, which I did and passed him back through the Police line.
...
Q: And what do you consider his offence to have been?
A: Obstruction.
Q: Is that because you understood his words to be some actually exhorting the crowd to an unlawful action or was it simply that by being in a leadership role at all, at that point in time and at that place, that he was, by definition, committing obstruction?
A: It had nothing to do with the simple fact that he was in a leadership role. Simply being in a leadership role would not, in my mind, constitute causing persons to rally, as that' s how I saw it. And I felt that he would continue to do that--
Q: Yes?
A: –-and that he would cause a further breach of the peace and I, therefore, arrested him.
Q: Am I right in recalling that the crowd was moving away from the police line at the time you arrested him?
A: No, sir, you' re not. The crowd was stationary.
Q: They--they were stationary?
A: Yes, sir.
Q: All right. And, again I can' t recall from your testimony, was there--what was it specifically, you understood him to be saying?
A: I don' t recall and I wasn' t able to recall earlier the specific words. But my understanding was, as to the best of my recollection, that he was holding the crowd, that he was, in other words, rallying the crowd and I was concerned that something may occur from that.
Q: Yes.
A: It was a very angry group of people and it may well have been justified that they were angry in some ways in their own minds, but I felt that some definitive action had to be taken.
The essence of S/Sgt. Stewart' s concern was that he was under orders to move the crowd further up the road and that, because Mr. Brooks was " rallying the crowd," he was an impediment to S/Sgt. Stewart achieving his objective.
After Mr. Brooks' arrest, the protesters were moved up the road by S/Sgt. Stewart in accordance with Insp. Killaly' s instructions and they were held at a point S/Sgt. Stewart estimated to be about 200 feet from the intersection. Police and the protesters remained there until the motorcades had passed.
28.3.2. Was Mr. Brooks' Arrest Appropriate?
The determination of the appropriateness of the arrest of Mr. Brooks requires a consideration of whether it was lawfully made.
28.3.2.1. Breach of the peace
S/Sgt. Stewart' s testimony suggests that the basis for the arrest was his perception that, largely due to Mr. Brooks' efforts, the protesters were obstructing the police in the execution of their duty, and that Mr. Brooks might cause a " further breach of the peace." Counsel for S/Sgt. Stewart set out his position as follows:
S/Sgt. Stewart has testified that he believed that Mr. Brooks was the leader of the protesters at that point (it will be recalled that S/Sgt. Stewart testified that he had observed Mr. Brooks organizing and directing protesters at the earlier incident, the noon rally at the Rose Garden) and that Mr. Brooks was directing the protesters to effectively resist the police. Significantly, Mr. Rob West, a complainant in these proceedings and one of the witnesses to the event (he was in the protest group), recalls that he heard Mr. Brooks tell everyone to stop, turn around and not let the police scare them away . . . . In the circumstances, S/Sgt. Stewart concluded that these protestors were breaching the peace and thus were in circumstances where an arrest was lawful. He interpreted Mr. Brooks' role as the tactical leader of that event and saw his actions as directing or encouraging the protestors to continue that breach; he elected to immediately arrest him. He did this by approaching Mr. Brooks, taking hold of him with his arms and turning and handing him off to police members on the line. Mr. Brooks was subsequently handcuffed and placed in a police wagon and taken to jail. Given the high state of tension and anxiety of the situation, and given that, for example, one of the protestors perceived Mr. Brooks to be directing that they should hold their position, it was not unreasonable for S/Sgt. Stewart to conclude and act as he did. (emphasis mine)
Given counsel' s position that S/Sgt. Stewart believed the protesters were breaching the peace, brief analysis of that concept will be useful, as there is a " public and, to a large degree, police misconception of what constitutes a breach of the peace giving a right to arrest at common law" : R. v. Lefebvre (1982), 1 C.C.C. (3d) 241 (B.C.C.A), aff'd (1984), 15 C.C.C. (3d) 503 (B.C.C.A.).
A breach of the peace is an act that results in actual or threatened harm to someone, and often involves a violent disruption or disturbance of public tranquillity, peace and order: Brown, cited above; R. v. S.S. [1999] N. J. No. 230. It does not arise simply because a person is being belligerent, loud and uncooperative with the police: R. v. Januska (1996), 106 C.C.C. (3d) 183 (Ont. Gen. Div.). Nor does the power to arrest for breach of the peace afford policy officers " some sort of roving commission to arrest all those whom they think they should arrest" : R. v. Khatchadorian (1998), 127 C.C.C. (3d) 565 (B.C.C.A.).
Breach of the peace is a common law offence, not an offence under the Criminal Code. However, the police have the power to arrest for breach of the peace under both the Criminal Code and the common law.
- Section 31(1) of the Criminal Code authorizes a peace officer to arrest any person he " finds committing a breach of the peace, or who, on reasonable grounds, he believes is about to join in or renew the breach of the peace."
- At common law, an officer has the power to arrest without warrant in order to prevent a breach of the peace that he or she reasonably apprehends will occur in the immediate future: Hayes (see Chapter 20).
Although breaching the peace is not an offence under the Criminal Code, section 129 of the Criminal Code makes it an offence to wilfully obstruct a police officer in the execution of his or her duty. As one of the primary duties of the police is to preserve the peace, a deliberate effort to prevent the police from containing a breach of the peace falls within section 129 of the Criminal Code.
As noted, S/Sgt. Stewart said that Mr. Brooks was " rallying the crowd" and that he arrested him for " obstruction" and to prevent him from inciting a " further breach of the peace" .
28.3.2.2. No statutory power to arrest for breach of the peace
I do not believe that S/Sgt. Stewart was entitled to arrest Mr. Brooks under section 31(1) of the Criminal Code. To begin with, S/Sgt. Stewart did not witness either Mr. Brooks or the other protesters committing a breach of the peace. After the RCMP formed their stationary line, all the protesters did was stop on the roadway, face the police and resume chanting and waving their placards. They were perfectly entitled to do that, and there was no reasonable basis for concluding that they were breaching the peace in so doing. Although there was some evidence that a few protesters had thrown some small stones and mud in the direction of the police, I do not believe that was of much significance or a real concern to the RCMP because of the minimal nature of it. Furthermore, as neither Mr. Brooks nor the other protesters had previously committed a breach of the peace, and none was then in progress, there was simply no breach of the peace for Mr. Brooks to " join in or renew" for the purposes of section 31(1). Therefore, S/Sgt. Stewart was not authorized to arrest Mr. Brooks pursuant to s. 31(1).
28.3.2.3. No common law power to arrest for breach of the peace
S/Sgt. Stewart was not entitled to arrest Mr. Brooks on the basis of the common law power to prevent a reasonably apprehended breach of the peace. The legal test is whether S/Sgt. Stewart honestly and reasonably believed that there was a " real risk of imminent harm." I will allow S/Sgt. Stewart the honest belief that a breach of the peace was imminent but I am not prepared to conclude that his belief was reasonable or that there was a risk of imminent harm. This was a peaceful protest with a law-abiding man at the helm.
The protesters had conducted themselves peacefully at Gate 6. It was S/Sgt. Stewart who decided to use force without proper warning. Despite that inappropriate use of force, the protesters generally complied with the RCMP efforts to move up University Boulevard. Once the RCMP formed a stationary line across University Boulevard, it was entirely reasonable for the protesters to assume that they were not required to move back any further. After the protesters stopped their retreat and faced the police line, they did nothing other than chant and wave signs. Even if Mr. Brooks was partly responsible for causing the protesters to stop their retreat, there was no basis to conclude that he was exhorting them to do anything other than resume their peaceful protest.
S/Sgt. Stewart' s conclusion that " something could occur" from the fact that Mr. Brooks was rallying the crowd was highly speculative and unreasonable in the circumstances. There was no " real risk of imminent harm".
I conclude that S/Sgt. Stewart was not authorized to arrest Mr. Brooks on the basis of the common law power to arrest in order to prevent a reasonably apprehended breach of the peace.
28.3.2.4. No grounds to arrest for obstruction
S/Sgt. Stewart did not have reasonable grounds to arrest Mr. Brooks for obstruction of police. The protesters had continued to move up University Boulevard until the RCMP stopped and formed a stationary line. It is true that S/Sgt. Stewart had been ordered by Insp. Killaly to move the protesters a further 100 feet up University Boulevard and he had a duty to comply with that order, but the protesters did not know that. Had S/Sgt. Stewart told Mr. Brooks and the other protesters of his duty to move them up the road, and had they refused to comply, that would have been quite another matter.
In the circumstances, Mr. Brooks could not possibly have intended to obstruct S/Sgt. Stewart in the execution of his duty. The arrest of Mr. Brooks by S/Sgt. Stewart was not appropriate to the circumstances.
S/Sgt. Stewart should have made an effort, before arresting Mr. Brooks, to advise the crowd that he had a duty to clear the road and that any efforts to prevent him from fulfilling that duty might result in arrest for obstruction.
It would be prudent practice for police officers, wherever feasible, to make every attempt to advise protesters, before making an arrest, that the police have a duty to move the protesters and that any attempt to prevent the police from fulfilling that duty may result in an arrest for obstruction. That way, the officer would not be in the position of arresting for a " common law offence," which cannot lead to a charge, and troublesome debates over whether a breach of the peace actually existed might be avoided.
28.3.2.5. Arrest was not appropriate
Having considered the statutory and common law bases for the arrest of Mr. Brooks, I conclude that the arrest of Mr. Brooks was not lawful and, therefore, was not appropriate to the circumstances.
28.4. Quick Response Teams
It is appropriate to make reference to the Quick Response Teams that were in action on campus throughout the day under the direction of S/Sgt. Stewart. He had brought two of the teams with him to Gate 6 and another of them was already there.
Members of the Quick Response Teams received a few hours' instruction on matters such as crowd control, pain and compliance holds, use of collapsible stretchers, and passive resistance techniques. However, the teams never trained together.
That is somewhat surprising, given the important role the teams were called on to play on November 25. Their responsibility was to respond quickly as backup, sometimes on an emergency basis, to problem incidents, such as demonstrations. Indeed, they were summoned to all of the " hot spots" as they developed on campus that day. Their role was a significant one. S/Sgt. Stewart summarized the reason for their existence: " to assist with problems that presented themselves that were not normally planned for."
Cst. Kinsey was a member of the North Vancouver Detachment. He said he was informed in October that he would be a Quick Response Team member. His first involvement with his assignment was in the week before APEC. He said that at the Quick Response Team headquarters in the Beatty Street Armouries, those without training in the use of pepper spray and the ASP baton were given the opportunity of training in those areas. He said:
And that was the only training we had other than every day before we were given our tasks for that day, we were briefed – and plans were set as to how we were going to deal with certain incidents, but that was it.
Insp. Ryan said that he would have expected the QRT members to have spent some time training together. He would have expected that there would have been some focus on defensive tactical training, enhanced command training and enhanced formations training so that everyone would clearly understand their positions and roles and have an opportunity to familiarize themselves with their colleagues from different jurisdictions.
That did not occur in this instance. The Quick Response Teams were not assembled until the week before the APEC conference. A/Comm. Wawryk explained that the teams are ad hoc units formed before a major event with less opportunity to train than tactical troops. Nevertheless, S/Sgt. Stewart said each Team Leader and each Assistant Team Leader was selected because of a sound basic background in tactical experience.
S/Sgt. Stewart said that 50% of the remainder of the RCMP officers comprising the Quick Response Teams had had tactical troop training, although he acknowledged that the teams had never had an opportunity to train together for any length of time. Acting Sgt. Quinlan said that a group of officers who had not trained together would take longer to accomplish their goal than would a group that had trained together in the manner outlined by Insp. Ryan.
28.5. Decontamination
I now turn to the inadequate decontamination treatment afforded to Mr. Wolinetz, Mr. Bailey and Mr. Brooks. One of the few areas of unanimity between all participants-witnesses and counsel alike-was the existence and extent of that inadequacy.
There is also no dispute that responsibility for that inadequacy rests with the RCMP. Counsel for S/Sgt. Stewart and Sgt. McLaren was correct in his assessment: There is no question that decontamination measures are part of the responsibility that accompanies the use of OC spray.... In circumstances where affected persons were in the custody of the RCMP... there is a positive responsibility upon members of the Force to ensure that appropriate decontamination measures are taken.
The evidence of the three arrestees and the van driver, then Cst. and now retired, Alan Homeniuk, satisfies me beyond doubt that appropriate decontamination measures were not taken. All three of the arrestees were placed in the van soon after they were arrested and handcuffed behind their backs. Only Mr. Bailey received any decontamination assistance before that. He said that while he was up against a tree someone, who, because of his bike helmet and yellow jacket he believes was an officer with the VPD Bike Squad, came along and poured a little bit of water into his eyes for a few seconds. He said the minimal amount of water was not really helpful to him.
The van was a closed unit during the time that the three men and one other prisoner sat in it. Mr. Wolinetz was the first one in. The others followed within minutes. Except for one small movement forward the van remained stationary for close to an hour and until all the motorcades had passed. Mr. Wolinetz described his condition:
I was in extreme pain--I was soaked head to toe in the pepper spray; it was honestly one of the worst experiences of my life. I have been hurt playing numerous sports, I' ve broken bones, I' ve just recently had a major operation and none of it comes close to comparing to the--to the way the spray felt. My eyes were firmly shut, I couldn' t see, my nose was just running and full of mucous and it just felt like my entire face and my ears were burning up; like the best analogy I can come up with is, I' d somehow gotten my face stuck on a hot burner, an element, and I couldn' t peel it off. And during that time, I was hyperventilating, sobbing, screaming, kicking the door--basically just begging and pleading for somebody to help me, to make it stop.
Mr. Bailey and Mr. Brooks were in a state of considerable discomfort but they conceded that Mr. Wolinetz was in the most serious situation. Mr. Brooks described Mr. Wolinetz' s plight as he saw it soon after he joined him in the van:
Q: Carry on. So you' re in the paddy wagon, then what happened?
A: We' re in the paddy wagon. David had clearly been doused with pepper spray. He was soaked, absolutely soaked in it. And in excruciating pain. I mean, it' s difficult to put into words what I witnessed. And I couldn' t help him--obviously, I couldn' t help him.
Q: Were you all in the same compartment?
A: Yeah, that' s right. He was writhing in agony. I mean, he was kicking the doors. He was screaming for some relief. It was burning his skin, he couldn' t see, he had had it in his eyes. And it causes, I assume, some kind of involuntary--involuntary blindness--
Mr. Commissioner: Was he cuffed?
The witness: He was cuffed. As I was loaded in they--they were screaming for water. They needed help, and they didn't get any at that time.
Mr. Brooks discussed his own condition:
It was intensely painful, excruciating--I felt like my face was on fire, that I had scalding water or something that had just been poured on me. It was just an intense burning sensation that I could do nothing about. I was given no relief whatsoever.
Some assistance did arrive approximately a half hour after the four were placed in the van. All of them did have some water poured into their eyes, though they said it was a small amount and quite insufficient to bring meaningful relief. They believed that this assistance came from police officers but the van driver said it was ambulance personnel and that is likely the case. The prisoners were substantially blinded during this time. I have concluded that the assistance given, while helpful, was not enough to bring immediate and substantial relief.
The prisoners were taken to the UBC Detachment where they were transferred to another van and taken to the VPD holding cells in downtown Vancouver. Mr. Wolinetz said that while he was at the UBC Detachment, he asked for decontamination and cleansing but it was not provided. He said it was not until he was on his way downtown in the second van that his vision returned to him. He estimated that this was between 5:30 p.m. and 6:00 p.m., which is the time he was booked into the VPD cells. It was not until they arrived at the VPD cells that the handcuffs were removed from the prisoners and washroom facilities were made available. They were held in the cells and released after 11:00 p.m.
Cst. Homeniuk acknowledged that he had some responsibility to deal with the prisoners in the van who were suffering from the spray but, in my judgment, he was not particularly helpful to them. He acknowledged that, once the ambulance attendants had left, the prisoners remained locked in the back of the van and he returned to the driver' s seat. Everyone stayed in those positions for about a half hour. He said the prisoners continued to complain about their eyes being sore and asked for more water but he was there alone and there was nothing he could do. His conversation with the prisoners did not reflect an appreciation on his part of the very painful experience they were undergoing in the closed van with their hands cuffed behind their backs. Mr. Brooks said that Cst. Homeniuk' s response at one point was to the effect that " you got what you deserved. I hope you' ve learned a lesson." Cst. Homeniuk acknowledged having told the prisoners " if you want to dance, you have to pay the band." In my judgment, that pretty much reflects the way Mr. Brooks and the others described Cst. Homeniuk' s attitude towards them.
Insp. Ryan spoke to the responsibility resting with the police for providing decontamination and reassurance:
If you go to apply spray to a crowd, you have to be prepared for a number of people who would have to be decontaminated. And that has implications with regards to the amount and the method that you bring water to the event. It certainly has implications for the paramedics that are present or police officers who are trained first aiders. And it speaks to a requirement to--to be able to meet the requirements of the policy which speak directly to police having to--to provide reassurance and decontamination once OC is applied. Because of the numbers of people that you' re speaking about, there are a number of logistical considerations that are outside the norm that have to be taken into account.
I believe that the RCMP did appreciate that it held that responsibility. When questioned why Mr. Bailey and Mr. Wolinetz were placed in the van without adequate care, S/Sgt. Stewart said " I don' t know how it happened and it shouldn' t have happened."
I also believe that RCMP members did honour that responsibility earlier in the day when some of those who were sprayed at the time of the noon hour rally needed assistance. Cst. Fulks had specific duties and responsibilities as a paramedic and he performed in a responsible manner at that time. He said that his function on November 25 was first and foremost as a medic. Commission Counsel correctly captured his role and participation:
Cst. Fulks, who assisted the QRT, was certified for a medical response team. He was trained at St. John Ambulance Advance Level II First Aid as well as RCMP adapted courses for tactical troops and police needs. As a member of the QRT he was to be available as a medic should anyone be injured and to assist with any other tasks. He spent most of his time with S/Sgt. Stewart. Cst. Fulks assisted to decontaminate some protesters, particularly Mr. Salas [the man who suffered respiratory distress at the noon march] after the fence came down. He was responsible for bringing in the two 5-gallon water sprayers.
Immediately after the fence came down at the noon rally, Cst. Fulks arranged for the delivery of two garden spray type yellow canisters full of water to be set up as decontamination stations should there be further incidents involving OC spray. Cst. Fulks set up the two stations with saline solution and the canisters were fitted with spray nozzles to provide a gentle mist to decontaminate affected areas.
Each Quick Response Team member carried an individual kit containing a bottled solution of water and boric acid to be used as a flush either by the officer or on anyone else. In addition, the teams had bottled water and saline solution available.
On learning that Quick Response Teams were going to Gate 6, Cst. Fulks took it upon himself to approach the two bicycle paramedics who had been at the fence incident earlier in the day and ask them to go to Gate 6 as a precautionary measure " because I had no idea of the level of resistance we were going to be meeting at that area." Those two paramedics arrived before S/Sgt. Stewart, Cst. Fulks and the two Quick Response Teams.
Cst. Fulks was asked what he knew of the handcuffed protesters in the police van who were banging, kicking and screaming for help. He said he knew nothing of that until well after the end of the APEC conference. I believe him. He said no RCMP member had approached him, although many of the officers there would not have been aware of his availability. The prisoners in the van should have received the same prompt and thorough treatment as Mr. Douglas received. They did not. Those who put the prisoners in the van should have alerted responsible people such as Cst. Fulks, S/Sgt. Stewart or Sgt. McLaren and the bicycle paramedics that there were people who needed attention.
Perhaps they considered that, once Cst. Homeniuk had custody of them, all responsibility rested with him. Counsel for S/Sgt. Stewart and Sgt. McLaren placed responsibility with the driver once the prisoners were left in his custody. Counsel pointed out that the driver was not under the direction of S/Sgt. Stewart. Counsel may well be correct about the responsibility of the driver. In any event, I fault the driver for his very casual response to the agony of those in his care. Surely he was not there without some form of electronic communication and those continuing to deal with the clearing of the gate were not that far off. Criticism does attach for the way this situation was handled, though I do understand that this was a tense time, with the safety of the exiting world leaders first and foremost in the minds of all those playing a part in providing security services. Nevertheless, the conduct of the members of the RCMP that resulted in Mr. Wolinetz, Mr. Bailey and Mr. Brooks receiving the inadequate decontamination treatment that I have described was certainly not appropriate to the circumstances.
I reject the cynicism inherent in the conclusion put forward on behalf of the complainants that the difference in treatment afforded to Mr. Douglas and the prisoners in the van is explained by the fact that Mr. Douglas was " employed by a national news organization, and there could be repercussions arising from his assault." Cst. Homeniuk knew nothing of the Douglas incident and Cst. Fulks' actions were neither influenced by such a proposition nor explainable on such a basis. I believe Cst. Fulks to have been honest in the presentation of his evidence.
28.6. Changing Views
There is one remaining matter to address in this chapter. It relates to comments made by Cpl. Flamank and Insp. Dingwall about the method and timing of S/Sgt. Stewart' s clearance of Gate 6.
28.6.1. Cpl. Flamank
I will first consider the Flamank matter. As has been pointed out, Cpl. Flamank was the Commander of Zone 3, which included the Gate 6 area. He was present when S/Sgt. Stewart and the two Quick Response Teams arrived. S/Sgt. Stewart acknowledged that he did not know Cpl. Flamank by name and that during the few moments between his arrival at Gate 6 and addressing the protesters " I never talked to him."
Cpl. Flamank said at that point he stood off to the side, positioned so that he did not hear what S/Sgt. Stewart said to the protesters, though S/Sgt. Stewart' s body language told him that he was saying something. Cpl. Flamank said he saw what he came to know was a stream of pepper spray and he saw the students disperse down one of the other streets.
Cpl. Flamank then went back down Northwest Marine Drive into the campus to checkpoint 13, which was within Zone 3. Sgt. Beaudoin, with whom Cpl. Flamank was sharing his Zone Commander duties that day, was seated by the side of the road in a police car and they spoke. Cpl. Flamank described the conversation:
Q: Well do you recall what that--what you said to him?
A: I said to him, probably something along the line that I didn't think it was necessary that he--that Stewart had done what he did and that I was unhappy with what had happened.
Q: And can you explain why?
A: In my eyes, we had a peaceful group of protestors and I wasn' t aware of any reason why that they couldn' t continue to sit where they were, and then what seemed to be relatively quick, Staff Stewart shows up and the protestors were dispersed with pepper spray. I had no idea why he was doing this, I guess, and that was probably one of my reasons for being frustrated at the situation.
In further examination, Cpl. Flamank gave this evidence:
Q: Right. And you heard him mention something at the time, right?
A: Again, I saw his body language and it appeared that he was saying something to this group.
Q: Okay. And fair enough. Let' s leave that, for now, at that. And sir, whatever the reason, why he was there, whatever the reason why he was there, it was your judgment, at the time, that you' ve expressed to Constable Beaudoin that the students were not given enough time to respond to Staff Sergeant Stewart' s commands before they were pepper sprayed. That was your view, right?
A: Yes.
Cpl. Flamank then added " [f]rom my perspective on that day I don' t think he gave them enough time" . Cpl. Flamank repeated that position twice while giving his evidence. Cpl. Flamank was asked if the view he took of the matter and expressed on November 25 to Sgt. Beaudoin was still his view. He responded:
Since the time that this happened and obviously today a lot of time has passed and a lot of media coverage around this event has--has occurred, and I now can sort of understand why he did what he had--had to do.
Later he said:
I can give you--say that I can understand some rationale for why he reacted the way he did. ...I understand now, why he may have acted the way he did.
Cpl. Flamank outlined four factors that he did not appreciate or understand when he spoke to Sgt. Beaudoin:
Q: Well, for example, when you formed that opinion and communicated it to the Sergeant, is it correct that you did not then understand that Gate 6 was going to be used at--as the exit for the motorcades?
A: That is correct.
Q: You were not aware that Stewart had been under instructions to come to Gate 6 and clear the protestors from the roadway?
A: I was not aware of that.
Q: You weren' t aware of any time constraints that were imposed upon Stewart for the accomplishment of that task?
A: No.
Q: You weren' t aware that other protestors might be en route to that scene, or that site, to re-enforce those who were present on the roadway?
A: I was not aware that more were coming, but I realized after this crowd was dispersed that more students/protesters seemed to now have been in the area.
Q: Yes. None of those factors were--were in your contemplation when you formed your opinion at that time?
A: That' s correct.
Q: And do I understand that today, you do not share the view you--or you do not hold the view that you expressed to the Sergeant on that occasion?
A: That' s correct.
I am satisfied that those are the reasons that led to Cpl. Flamank' s later understanding of why S/Sgt. Stewart acted as he did when addressing the students and dispensing the pepper spray. Complainants' counsel characterized Cpl. Flamank' s understanding acquired after he spoke to Sgt. Beaudoin as a " change of mind." Counsel asked:
Q: It' s--I take it, sir, you' ve heard of the ethos that works within just about every Police Force in North America, that it' s not a nice thing to do anything which amounts to testifying against a former Officer? Would you agree with that?
A: I' ve heard of this, yes.
And later:
Q: My question to you, sir, is what have you heard of? Can you be any more specific?
A: What--what you said, but I' d take it a step further and say that if I was in a position where I felt any Police Officer was doing anything wrong, I would take steps to correct that. I would not--what you are informing here is that I would be covering something up, not a chance, sir.
I accept the truthfulness of Cpl. Flamank' s answer that he was not engaged in covering anything up and I accept his evidence when he rejected the suggestion that his evidence resulted from expressed or implicit but real pressure on him from within the force. It follows that I also reject as unfounded the submission by counsel for some of the complainants that: Cpl. Flamank' s evidence was " designed to attempt to rehabilitate S/Sgt. Stewart and remedy the crack in RCMP solidarity created by Flamank' s statements to the internal investigators who had taken his statement."
28.6.2. Insp. Dingwall
The comments made by Insp. Dingwall also relate to his assessment of S/Sgt. Stewart' s performance at Gate 6. Prof. Pavlich told the hearing of a debriefing meeting on the November 25 campus events held on December 8, 1997, attended by senior personnel from both UBC and the RCMP. Prof. Pavlich and Insp. Dingwall were present and Prof. Pavlich gave evidence of what he understood Insp. Dingwall to have told the meeting:
The other area was Gate 6, and he felt there that the RCMP had a problem. And he said the reason was because the roadway had a lot of students demonstrating, and quite legitimately, the officer in charge there had asked these people to vacate the area. And if he could have insisted that they vacate immediately, move away, but instead he had said, " I' ll give you a minute to move." And then, without waiting the minute, he had immediately proceeded to pepper spray, or given the orders to pepper spray. And he said he felt that that--there was an area of vulnerability for the RCMP there.
Insp. Dingwall acknowledged that was an accurate recording of what he had said at the meeting but said he was not at the time in possession of all the relevant facts. Most significant was his mistaken belief that S/Sgt. Stewart, in his direction to the protesters, had said " you have one minute to move." Once Insp. Dingwall came to understand, subsequent to the December 8 meeting, that S/Sgt. Stewart had not said " one minute to move" but rather " one opportunity to move," he changed his mind about there being vulnerability for the RCMP and went so far as to express the view that S/Sgt. Stewart had not acted improperly.
While Insp. Dingwall referred to other factors as also playing a part in his change of viewpoint I do not consider those other matters to be directly relevant. My conclusion is that he changed his mind because of the information he later acquired about S/Sgt. Stewart' s actual words to the protesters. While I have made it quite clear that I completely disagree with Insp. Dingwall' s ultimate conclusion with respect to S/Sgt. Stewart' s use of pepper spray at Gate 6, I do believe that his explanation for disassociating himself from what he said on December 8 was an honest one.