RCMP Commissioner's Notice

March 10, 2011

[PDF Format, 3MB]

Mr. lan McPhail, Q.C.
Interim Chair
Commission for Public Complaints
Against the RCMP
P.O. Box 1722, Station "B"
Ottawa, ON
KIP OB3

Dear Mr. McPhail,

I acknowledge receipt of the Commission's Interim Report dated December 15, 2010 on the Public Interest Investigation into the Member-Involved Shooting Death of Mr. John A. Simon.

We have completed a review of this matter, including the findings and recommendations set out in your Interim Report. In general we agree with your findings and recommendations and where we are not completely of the same view, it is with respect to matters which we do not believe impact in a significant way on your overall conclusions.

I cannot agree that Constable Bernard placed himself at unnecessary risk by failing to wait for the backup that had been called out, prior to attending the Simon residence. Although there were risks inherent in attending the residence, I believe that it was not unreasonable for Constable Bernard to have attended to be better able to assess the situation and to determine if any individuals were in immediate danger.

I agree that Staff Sergeant Thompson failed to ensure that an adequate operational plan had been put in place and understood by the responding members prior to their deployment. No specific directions were given to Constables Frenette and Bernard on the anticipated police response to the situation. Staff Sergeant Thompson ought to have clearly articulated the respective roles of the members involved.

I also agree that Staff Sergeant Thompson permitted Constable Frenette to place the other members present and Mr. Simon in unnecessary jeopardy. In particular, the members' initial positions blocking the road, while necessary, did not isolate Mr. Simon from having potential contact with his neighbours and the police. As indicated in the Use of Force Investigation Report, Constable Frenette made a sound tactical decision to get closer to the house to gather intelligence and for the purpose of containing Mr. Simon to protect the neighbours. When Constable Frenette positioned himself on the deck of the residence, however, he created a risk to the safety of Mr. Simon, himself and the other members present.

I do not agree that Staff Sergeant Thompson knew or ought to have known that Constable Frenette was contemplating entering the house. As noted on page 12 of the Commission's Interim Report, " [t]he available information, i.e. the radio logs and statements of the involved members, indicates that Staff Sergeant Thompson did not know that Constable Frenette was planning to enter the residence without instructions to do so." I do conclude, however, that Staff Sergeant Thompson ought to have made it clear to Constable Frenette and others that they were not to take such action without his express instructions.

I agree with the finding that Constable Frenette acted in an inappropriate manner by deciding to enter the Simon house with no clear instructions, notice to the other members, backup, means of escape or operational plan. As noted in the Use of Force Investigation Report, Constable Frenette failed to employ a proper risk assessment in that he did not appropriately weigh the benefits of entering the residence versus the potential for a deadly confrontation with Mr. Simon.

I agree with the finding that, having entered the residence and encountering Mr. Simon, Constable Frenette had sufficient grounds to believe his life was in jeopardy and that the decision to resort to the use of lethal force by discharging his service pistol at Mr. Simon was appropriate in the circumstances. Specifically, the evidence establishes that Constable Frenette was reasonably in fear of his life when Mr. Simon pointed a firearm at him and when Mr. Simon did not comply with Constable Frenette's pleas to stop pointing the firearm at him.

I accept the conclusion of the Use of Force Investigation Report that at that point Constable Frenette had no choice but to defend himself and that the use of lethal force was defensive in nature and necessary in the circumstances.

I agree with the findings that there is no evidence of bias or subjectivity in the conduct of the RCMP Major Crime Unit investigation and that the RCMP members involved in the investigation of this incident acted appropriately, professionally, without bias and in accordance with section 37 of the RCMP Act.

I agree with the finding that it was reasonable in the circumstances for the RCMP to restrict access to Mr. Simon's body by his family members, as this was necessary to protect evidence.

I agree with the finding that, in accordance with good police management practices, the RCMP should have scheduled a post-critical incident meeting to identify lessons learned.

I agree with the finding that no training deficiencies contributing to this incident were identified.

With respect to the early media releases relating to this incident prior to the conclusion of the Integrated Critical Incident Investigation, I agree with the finding that the contents of those releases could have misled the public into believing that the investigation was being carried out solely by the Halifax Regional Police. While not an intentional attempt to mislead, I find that insufficient details were provided about the nature of the integrated investigation. It should be noted that in media releases following the conclusion of the investigation, sufficient details were provided to correct any such misperceptions.

I support the recommendation that, following any critical incident in which another agency investigates the actions of a member of the RCMP, a post-incident debriefing take place involving both the outside agency and the RCMP to identify lessons learned or deficiencies. The RCMP is currently undertaking a policy review with the objective of making changes to national policy. Additionally, I note "H" Division has already put in place the requirement that the RCMP meet with independent agencies who undertake investigations of our employees to discuss issues, lessons learned or best practices which arise from such investigations.

I support the recommendation that the RCMP undertake a review of its policy with respect to barricaded persons. The RCMP has already reviewed the applicable policies. While the subject is covered in several existing policies and our training curriculum, further consideration will be given to potential policy improvements in this area. In addition, "H" Division has developed Divisional policy on critical incidents, including those involving barricaded persons, which policy was published in November 2010.

I support the recommendation that a guide/checklist be developed and installed in all the police vehicles' mobile workstations to ensure that all operational procedures for a critical incident are followed and completed. The RCMP is currently developing a National Critical Incident Form that will be incorporated in the Operations Manual and will be used to assist members in determining appropriate responses to critical incidents. Other important initiatives that are underway on a national level are the creation of an Emergency Response Team Governance Policy and an Investigators' Development Program. Both of these initiatives will include the creation of checklists and flowcharts to assist members in responding to critical incidents. Finally, I can indicate that "H" Division has created a Risk Assessment Check Sheet that members may access from their mobile workstations and use to assess the level of risk involved in particular critical incidents.

I support the recommendation that a review of the RCMP training curriculum regarding the response process to critical incidents, such as barricaded persons, be conducted to ensure that issues of containment and the management of emotionally disturbed persons are adequately addressed. This review has in fact been completed. At this time, the RCMP is satisfied that our training curriculum adequately addresses this subject. Having said that, ongoing review is an essential element of the RCMP's policy and curriculum development and will continue. Additionally, "H" Division has updated its training curriculum pertaining to members responding to critical incidents.

I support the recommendation that use of force experts receive training in the biomechanics of lethal force encounters. Currently, biomechanics principles are used in the design of training and tactics. The RCMP is also in the process of exploring a national standard for the qualification of its use of force experts.

I support the recommendation that the RCMP consider adopting into policy a formalized process to ensure timely notifications and to ensure the proper documentation of decisions during the consultative process of matters under Part IV of the RCMP Act. As referred to in your Interim Report, the Senior Deputy Commissioner of the RCMP recently issued a directive to all Commanding Officers requiring that the Professional Integrity Officer be notified of Code of Conduct investigations and emphasizing the requirement to articulate decisions on whether or not to proceed with Code of Conduct investigations. The RCMP will undertake a policy review to examine mechanisms that could further refine the formal decision-making process relating to discipline, in order to promote consistency and proper documentation.

I support the recommendation that Constable Frenette undergo full remedial training in the IM/IM as well as the CAPRA model. I have directed that he undergo such training prior to his return to active duty.

I support the recommendation that Staff Sergeant Thompson be provided training in operational supervision of junior members and in critical incident planning and management. Staff Sergeant Thompson successfully completed this training in 2010.

I support the recommendation that the RCMP consider entering into a bilateral agreement with non-RCMP Emergency Response Teams to ensure adequate and timely coverage in the event of an incident requiring the deployment of Emergency Response Teams. While several RCMP Divisions already have agreements in place with other police agencies, the RCMP is committed to exploring further agreements. As mentioned above, the RCMP is also developing an Emergency Response Team Governance Policy.

I support the recommendation that press releases be reviewed by operational commanders before being released to ensure accuracy and to avoid any possible mischaracterizations. Direction will be given for this to be done.

With respect to your recommendation concerning an apology, it should be noted that, in this response and more broadly, we have acknowledged our errors. We also recognize and deeply regret the tragic consequences of those events. Although nothing can make up for Mr. Simon's death, we will continue to engage Mr. Simon's family and the community in an effort to address their loss in appropriate ways acceptable to them.

In closing, I would like to thank you for your report and your ongoing work which will inform our continuing efforts to ensure the RCMP has in place appropriate policies, procedures and practices.

I look forward to receiving your final report in this matter.

Yours sincerely,

William J.S. Elliott, Q.C.