Chair's Interim Report – Incident Related to Neglect of Duty, Improper Use of Force, Improper Use of Firearms and Improper Vehicle Search

RCMP Act Paragraph 45.42(3)(a)

Vetted version for posting

October 20, 2008

Overview

On April 15, 2005, seven RCMP constables and one corporal of an RCMP detachment in British Columbia conducted a covert takedown of Mr. A.S. whom they misidentified as a suspect they were attempting to locate as a result of an outstanding warrant for arrest (hereinafter referred to as "the target").

During the course of the incident, Mr. A.S. repeatedly rammed the unmarked police vehicles that the members used to box in his vehicle. At one point, Constables D and E approached Mr. A.S.'s vehicle with their firearms drawn, yelling at Mr. A.S. to turn off his vehicle. Constable D then jumped onto the running board of the vehicle and smashed the driver side window with his firearm. He repeatedly commanded Mr. A.S. to stop the vehicle. He then hit Mr. A.S. in the mouth with the barrel of his firearm causing injury to Mr. A.S.'s face. Mr. A.S. surrendered upon seeing Constable H, the Police Service Dog officer, approaching the vehicle and warning him to cease his behaviour. Constable H was the only member in uniform at the scene.

On June 14, 2005, Mr. A.S. filed a public complaint with the Commission essentially alleging that the subject members failed to properly identify themselves in a timely manner and used excessive force during his arrest; that Constables D and E improperly used their firearms; and improperly searched Mr. A.S.'s vehicle by unnecessarily damaging it.¹

As required by the RCMP Act (the Act), the complaint was investigated by the RCMP. According to the Act, on completion of the investigation the RCMP Commissioner (or his delegate) shall send his Final Report to the complainant summarizing the results of the investigation and any action taken to resolve the complaint. In this case, the Commissioner's Final Report dated June 30, 2006 did not support the complainant's allegations.

On March 28, 2008, Mr. A.S. requested a review of the RCMP's disposition of his complaint. The Commission received the investigation documents on April 22, 2008.

For the reasons outlined below, the evidence leads me to conclude that the subject members, except for Constable H, were not properly identified as police officers. I am not satisfied that the arrest of Mr. A.S. was based upon good faith and reasonable grounds;² consequently, the force used in arresting him was improper, and the use of the firearms and the search was also improper.

Commission's Review of the Complaint

It is important to note that the Commission for Public Complaints Against the RCMP is an agency of the federal government, distinct and independent from the RCMP. When reviewing a complaint, the Commission does not act as an advocate either for the complainant or for RCMP members. Rather, its role is to inquire into complaints independently and to reach conclusions after an objective examination of the information provided.

The Commission requested relevant materials that may have been contained in the target's operational file; for example, any information with respect to Constable G's previous dealings with the target. The RCMP reviewed the materials and deemed none of it relevant. The RCMP advised that all the "relevant material" with respect to the complainant, Mr. A.S., had been forwarded to the Commission.

My findings are based on a careful examination of the following materials: Mr. A.S.'s complaint, his request for review and correspondence, dated March 10, 2008, from his legal counsel; the Commissioner's Final Report and the public complaint investigation report and all documents appended thereto, including a copy of the Report to Crown Counsel (RCMP Coquitlam Detachment File No. 2005-14627) ("RTCC"); the letter to Crown counsel's office from Corporal J; the letter from Regional Crown Counsel Q to Coquitlam GIS NCO ("the Crown's letter"); the warned statement of Mr. A.S. dated April 15, 2005; statements of Constables F, G and C; statements and notes of Constables H, E and D, and Corporal J; the hospital emergency room report for Mr. A.S., dated April 15, 2005; the booking photograph of Mr. A.S., photographs of the incident scene and an enlarged map area from Mapquest; the public complaint statement of Mr. A.S. dated February 3, 2006; statements of Mr. N, Ms. O and Mr. P; a copy of the Police Transport Incident/Collision Report; and various routine correspondence relating to the public complaint administrative process.

First Allegation: The subject members failed to properly identify themselves to Mr. A.S. in a timely manner.

A review of the evidence reveals that on April 15, 2005, the RCMP detachment's Street Enforcement Unit and a Police Service Dog unit were assigned to locate and arrest a particular individual, "the target." The target had an outstanding warrant for his arrest for violation of a bail recognizance. He had been charged with a serious offence and had a lengthy criminal record. Based on the information that the RCMP possessed, the target was considered to be armed, dangerous and a violent escape risk. The RCMP had information that the target was known to frequent a particular residence on A Street and the subject members set up their surveillance on that residence at approximately 4:00 p.m. on the day in question. It appears that the ranking member on scene was Corporal J.

The subject members were in plainclothes and driving unmarked vehicles because the target had a history of fleeing from police and being violent. The Police Service Dog handler, Constable H was in uniform and was parked a few blocks away from the surveillance setup. She was waiting to be called on for assistance, if necessary.

According to the subject members' statements, the RTCC and the Crown's letter, Constable C was in an unmarked police vehicle, parked facing westbound mid-block on the north side of B Avenue, between A Street and C Road. Constable C observed a green sport utility vehicle (SUV) parked facing eastbound on the south side of B Avenue, approximately one half block east of A Street. In his statement, Constable C relates that the SUV was registered to B.S., "mother of A.S., a male known to associate with the target."

Constable C was watching the SUV when Constable G advised that a Caucasian male had exited the residence in question and was walking toward the street via a back alley. Constable G also provided a description of the male's clothing. After a brief delay, Constable C stated that he then observed the male approach the SUV, open the passenger side door, and then walk back towards the residence via the back alley. Constable G, using his police radio, advised all members of the surveillance team that he believed the male was the target. The male then exited the residence and returned to the SUV and started the engine.

Corporal J's evidence indicates that he was directed by Sergeant K to arrest the male and upon being so advised, he began to coordinate the actual arrest. Corporal J stated: "Due to the fact that the target may be armed and dangerous, I decided to do a covert takedown to ensure the safety of everyone involved." While "covert takedown" is not defined, it is reasonable to assume that it means the members initiate the takedown without any visible police identification.

The evidence indicates that at approximately 4:50 p.m., the subject members did initiate a covert takedown of the male seated in the SUV. This involved the surveillance team, in plainclothes and operating three unmarked vehicles "boxing in" the SUV. Mr. A.S., who was in the driver's seat of the vehicle, responded by "ramming" the unmarked police vehicles. Constables E and D exited their vehicles, with their service pistols drawn, and ran toward Mr. A.S.'s vehicle yelling "Stop Police." Mr. A.S. continued ramming the unmarked vehicles, and began to "push" one of the police vehicles towards A Street, a busy thoroughfare. Constable G's evidence indicates that he went to assist the two constables and he yelled "Police, stop resisting." Constables H and C and Corporal J all recall hearing other members yelling "police, stop" or similar commands.

According to Constable D, he jumped on the driver's side running board of the SUV. After repeatedly yelling "stop, police" through the driver side window, he punched out the window with his pistol, repeated the commands and then struck the driver in the face with the barrel of the pistol. Mr. A.S. sustained significant injuries to his mouth area; nonetheless he kept ramming the other vehicles. In his contemporaneous police notebook entries, Constable D noted:

After the window shattered I kept on yelling at the driver "to stop Police! Stop!" but he wasn't listening [...]. [...]I kept on yelling at him to stop the vehicle. [W]ith my left hand grabbing the driver I str[uck] the driver with my gun [...]."

The evidence reveals that Mr. A.S. finally surrendered when Constable H, who was in uniform and had the Police Service Dog with her, approached the SUV and warned him that she was going to release the police dog into the front seat area of the vehicle. Mr. A.S. released his hands from the steering wheel and turned to Constable H and stated "I didn't do anything." It was only once Mr. A.S. was arrested and handcuffed did the members become aware that they had mistakenly arrested the wrong individual.

Mr. A.S. was interviewed twice concerning the incident. His first statement was taken as a warned statement by Constable M. In his statement, Mr. A.S. relates that he believed he was going to be robbed either for his car or his gold chain. He stated:

I get in my car, some guy's running at me with a gun, I have no idea who it is, another car blocks me off. I thought I was gonna get jacked for my car or something, my chain, I don't know.

Mr. A.S. indicated that he did not know it was the police surrounding his vehicle. He told Constable M: "Like all the cop had to do was flash his badge and like say I'm a officer instead of running at me with a gun, like I'm looking right down the barrel. I'm glad I didn't try to reach for it, he probably would have shot me." He also stated: "I wish I would have known it was a cop. I have nothing to hide. Like they found nothing in [the]car. Like I wish they would have shown me a badge. Like I was happy to see a cop car."

According to Mr. A.S. he was "scared for his life" and did not "know what the hell was going on." He says he was yelling for help and did not hear anyone yell "Police." In his statement to the public complaint investigator, Mr. A.S. says that he heard one person yelling "stop, stop." He described one of the members who ran up to his vehicle as having a shaved head, "harsh, young looking, like wearing...street clothes...jerseys and stuff." He stated that his "heart was pounding" and, in essence, he was panicking.

Mr. A.S. says he stopped trying to flee the situation when he saw a police vehicle. He stated: "And then I seen a cop car and I'm like finally I'll be safe, I thought the cop was going to save me, and then I'm getting beaten up by cops."

Three civilian witnesses were interviewed by the public complaint investigator. Mr. N stated that he observed at least four officers converge around the driver side window. He says he heard a female officer yelling "police, police." Mr. N stated that once the driver was pulled from the vehicle, he heard him say: "I don't know who you are...what are you doing." Mr. N's wife, Ms. O, stated that she recalled "screeching of tires and everybody jumping out saying, "Stop, Police." Finally, Mr. P, who is deaf in one ear, stated that he heard a lot of commotion on the street and looked out the window. He saw a "real fancy sport utility vehicle" being hit by several cars. He then saw someone approach the SUV with a gun. He assumed it was the police in part because the vehicles looked like unmarked police vehicles. He heard people repeatedly yelling "turn off your vehicle." When asked specifically by the public complaint investigator, Mr. P responded that he did not recall hearing anyone yell "police."

The RCMP subsequently sought to have Mr. A.S. criminally charged with dangerous driving, assault with a weapon and obstruction of a peace officer as a result of the incident. However, the Crown would not approve the charges. The RCMP requested a charge approval review, which was undertaken by Mr. Q, Deputy Regional Crown Counsel. In his letter, he advised that the charges would not be approved because there was no substantial likelihood of conviction. He stated that:

[b]ased on what now has to be conceded as an officer's misidentification, the surveillance team, in plain clothes and operating three unmarked police vehicles execute the "takedown plan" by "boxing in" the vehicle being driven by Mr. A.S. It is very important to remember that Mr. A.S. has no reason to run from the police. He is driving his mother's car, he has no outstanding warrants for his arrest, he is not in possession of stolen property and/or drugs. In short, Mr. A.S. has not done anything for him to believe that the police would looking to arrest him.

Deputy Regional Crown Counsel T concludes by advising that in the final analysis Mr. A.S. has a viable defence of self-defence that would likely succeed.

Analysis

Police Verbal Identification

Mr. A.S. alleges that the subject members did not properly identify themselves when they mistakenly arrested him. There is no suggestion in the evidence that any of the subject members displayed any form of police badge identification to Mr. A.S. or activated the emergency equipment in their unmarked vehicles during the incident. Moreover, it is apparent that Constable  H was the only member in uniform and she arrived at some point after the initial covert takedown had been initiated. Mr. A.S. makes reference to a police vehicle arriving after he was arrested; it is not clear if this was Constable H's or Sergeant K's vehicle, who also arrived at the scene after Mr. A.S. had been subdued.

There is conflicting evidence in terms of whether certain members yelled "police" during the incident. The subject members are consistent in their evidence that Constables D, E and G yelled "Police, Stop" or similar commands to Mr. A.S. Two of the civilian witnesses say they heard "police" being yelled. Mr. A.S. says he only heard someone yelling "stop." Based upon the consistent evidence of the subject members and the civilian witnesses, I am satisfied that Constables D, E and G yelled "Police" and then issued commands to Mr. A.S. However, I acknowledge that Mr. A.S. was likely panicking and not thinking coherently. He says he was screaming for help, believing that he was under attack and being robbed. Under these chaotic conditions, it is reasonable to assume that he may not have heard, understood or believed what was being yelled at him, by "a harsh, young looking" man with a gun. Furthermore, there were no visual indicators that Mr. A.S. could have observed that would have allowed him to immediately realize he was dealing with the police, such as police vests, badges, a uniformed member present or marked police vehicle. As stated in the Crown's opinion letter:

[...] there is nothing in the surrounding circumstances that Mr. A.S. could look to as confirmation that these officers were in fact police officers. For example no badges were produced, no sirens were turned on or visible.

Accordingly, I find that while the subject members verbally identified themselves, Mr. A.S. was in a state of panic and consequently was unable to hear or understand that they were yelling "Police" at him.

Police Transport Incident/Collision Report

The Police Transport Incident/Collision Report, dated September 26, 2005, was completed by Sergeant R, the RCMP detachment's NCO I/C Traffic Services. The report examines the collision and its causes. Sergeant R concludes that the officers were acting within the scope of their duties and were operating unmarked police cars. He stated: "All the cars being operated did have some police emergency lighting and sirens, however this equipment was not used." Sergeant R goes on to query:

Would the use of this equipment made a difference in this incident? Was the driver of the SUV aware that the people who were trying to block him [in] were the police?...The driver may not have been aware initially that it was police cars who were surrounding him but as soon as the officers exited their cars and yelled out that they were the police he should (emphasis added) have known.

Given the lack of visual identification and the overall appearance of the plainclothes members, it is difficult to understand how Mr. A.S. "should" have known it was the police approaching him.

The report concludes by stating:

An issue for discussion as a result of this incident is, should the officers have turned their police car emergency lights and should [they] have flashed their badges to the driver when trying to get him to stop.

RCMP Policy for Plainclothes Members

In terms of RCMP policy with respect to plainclothes members and identification, RCMP National Operational Policy and E Division Operational Policy for Plainclothes Members (I.4.c) both state:

When there is a need to identify a member on plainclothes duties as a peace officer, police identification jacket/vests/ and/or RCMP badges and I.D. cards will be used.

This policy permits individual members a wide discretion in terms of whether or not to use police identification. Given the high-stress situation that can result when plainclothes members change from covert to overt (taking action against a suspect) activities, the Commission believes that verbal identification is insufficient to identify plainclothes members as peace officers. While some discretion is necessary, plainclothes operations that move from covert to overt status can pose a grave risk to member and public safety in the absence of visual identification. The facts of this case are a clear example of these risks.

In the Commission's view, the RCMP Plainclothes Member policy should provide clear guidance to the effect that when plainclothes members change from covert to overt operations, verbal and visual identification³ will be used, unless safety or operational reasons dictate otherwise. The emphasis in the policy should shift from plainclothes members using identification only if "there is a need" to visual identification being the standard practice, except for when exigent circumstances exist, which preclude it. Moreover, it is important to note the role of the supervisor, which is critical to this process. In addition, operational plans should include a visual identification requirement when changing from covert to overt activities and proper dress/equipment should be worn for these purposes.⁴ Finally, the supervisor should also approve and be present during all planned plainclothes or covert operations.

Conclusion

In summary, I acknowledge Corporal J's reasons for initiating a covert takedown and in this regard, I am satisfied that he did not exercise his discretion improperly or for an improper purpose in deciding to initiate the arrest in such a manner. However, once the takedown had been initiated and the operation had shifted from covert to overt status, Corporal J as the team surveillance leader should have authorized visual identification to be used and not have the members rely solely on shouts of "Police" as a means of identifying themselves as peace officers.

This incident illustrates the risks of plainclothes members relying solely on verbal identification when conducting covert takedown operations. The Commission notes that there was a real likelihood that more injuries could have been sustained as a result of the takedown. While there is no question there would be unique situations where members must maintain their covert status during the entire takedown and arrest operation, it is reasonable to assume those situations would likely be rare. In this case, once the members had "boxed" in the target's vehicle and prevented his escape route, there would be no reason for the officers to maintain their covert status. In fact, for police and public safety reasons, it would seem reasonable for the members to visually identify themselves as peace officers in order that the target and members of the public would realize it was a law enforcement operation in order to avoid anyone panicking. I am concerned that one of the reasons this did not happen is that Corporal J did not have a proper operational plan in place.⁵ He appeared to formulate the method of arresting the target at the scene, including the boxing in of the SUV by the unmarked police vehicles. This is clearly insufficient and placed all the members at risk. Accordingly, as the team leader and the member responsible for the operation, Corporal J should have authorized the members to use visual identification, or have had a uniformed member/marked police vehicle immediately present once the takedown had been initiated and the operation had shifted from covert to overt status. Moreover, given that Sergeant K was the supervising member and responsible for the safety of the members, he must accept responsibility for the improperly identified members as well.

In terms of the other subject members present, there is no question that they did not visually identify themselves. In hindsight, visual identification was the only effective method of identification. Visual identification is less likely to lead to misinterpretation or misunderstanding.⁶ However, I cannot fault the members for failing to visually identify themselves. The RCMP policy with respect to plainclothes members is too vaguely worded to provide proper guidance to members and affords members too wide a discretion. The decision to use visual identification should not be left up to individual members during the heat of the moment of a chaotic and violent takedown. Particularly given the dynamic nature of these incidents, this should be a predetermined decision made during discussions about the operational plan and then authorized by the team leader at the scene at the appropriate time. Again, as no operational plan was referred to in the RCMP's investigative materials, it can reasonably be inferred that none existed.

Finally, I note that Constable H, the Police Service Dog member, was the only member in uniform. It is interesting to note that, in essence, Mr.  A.S. surrendered upon seeing Constable H and being advised by her that she would release her police dog into his vehicle. There is no stronger law enforcement visual indicator than a uniformed police officer, particularly one with a police dog. Accordingly, Constable H was properly identified as a peace officer.

Second Allegation: The subject members used excessive force during the arrest of Mr. A.S.

Third Allegation: Constables D and E improperly used their firearms.

There is no dispute that force was used during the arrest of Mr. A.S. Indeed, the evidence is fairly consistent in terms of the nature of force that was used during the incident. The Criminal Code empowers police officers to use reasonable force in the administration and enforcement of the law. In order to determine if the amount of force used to arrest Mr. A.S. was reasonable, I must first determine if his arrest was proper. If his arrest was not proper then any use of force would be unreasonable and excessive.

In determining if his arrest was proper, the misidentification of Mr. A.S. must first be examined. Section 28 of the Criminal Code creates a limited exemption from criminal responsibility for those executing warrants who mistakenly arrest the wrong person if the mistake is made in good faith and on reasonable grounds.

Based on the evidence, it is apparent that Constable G was responsible for identifying the target. According to his statement, he sat in an unmarked police vehicle watching a residence on A Street approximately 50 metres west of the house. He was watching people come and go from the residence, relaying his observations to the other members of the surveillance team using his police radio. At one point, he was advised by Constable C that a green SUV had just arrived and parked in the alley northeast of the residence and out of Constable G's view. Constable C provided a description of the male and seconds later Constable G observed a male matching that description. He observed the male through his binoculars and identified him as the target.

In his contemporaneous notes, Constable D noted: "Cst G advise it was T1 indicat[ed] 100% certain (previous dealings)."

An official RCMP document describes the target as being Caucasian, approximately six feet in height, male, blue eyes, brown hair with medium complexion. The document also describes two scars, on the target's arm and the other on his leg. A photograph of the target is attached to the document. The document also references Constable G.

There is no information in terms of whether Constable G or any other member of the surveillance team had with them a picture of the target.

In terms of the grounds upon which the identification was made, the following is stated in the RTCC:

At 16:35, Constable G observed a male exit the residence of 2332 A Street. The male is described as follows:

• Caucasian male;
• Light hair;
• Approximately 6'1";
• Wearing a black and white jacket; and a
• Baseball cap.

Sergeant K was monitoring the team from the Coquitlam Detachment by police radio. In his police notebook entries, he notes: Constable G advised male out with hand up to wheels. [Corporal] J advised to hold off. I overule [sic] – call takedown as I was confident that even if this wasn't the target, then he would be in res."

Based upon this evidence, I am satisfied that there is sufficient evidence to find that Constable G's positive identification of the target was made in good faith and on reasonable grounds. It is apparent that there is somewhat of a similarity between the general appearance of the target and Mr. A.S. Both are young, Caucasian males, very similar height and build, with light hair. Moreover, the target was associated to the SUV.

I do note that while the surveillance team had information that the target was known to ride in the vehicle, this does not suggest with any certainty that the young man in the vehicle was going to be the target. In fact, a reasonable supposition would have been that the male in the vehicle would more likely than not have been the vehicle owner's son, A.S. For this reason, it would have been prudent for the surveillance team, and in particular Constable G, to have exercised greater diligence in making the identification of the target given the association of Mr. A.S. to the vehicle as well. Moreover, the target had scars but there is no evidence that Constable G saw or looked for these distinguishing marks. Nonetheless, given the apparent similarity in general appearance between Mr. A.S. and the target, I am not prepared to find Constable G's identification to be unreasonable.

I note that Sergeant K's notebook entry reveals that Corporal J wanted to hold off on the takedown. Sergeant K goes on to state in his notes that he overruled Corporal J, as he was confident that even if this male was not the target, that the target would be in the residence that the members had been watching. Presumably, the team would then arrest the target in the house.

There was no evidence in the materials provided by the RCMP in terms of why Corporal J proposed holding off the takedown. Consequently, the Commission conducted a further investigation in order to obtain evidence on this point. The Commission's investigator asked Corporal J why he did not want to initiate a takedown with his covert surveillance team. Corporal J's response was that he "wanted to get a closer look at him [the target], but, due to the circumstances, things happened a little quicker than expected." Corporal J's response indicates that he was prepared to hold off on the takedown in order to get a closer look at the target. Corporal J's approach of slowing things down and holding off in order to get a closer look at the target was a measured and prudent response to a dangerous situation. Moreover, it is consistent with the notion that members of the surveillance team should have been exercising greater diligence with the takedown given Mr. A.S.'s association with the vehicle in question and similar general appearance to the target.

Nonetheless, Sergeant K approved the takedown rationalizing that even if they arrested the wrong person, the target would be in the residence. This statement discloses a disregard for section 9 of the Canadian Charter of Rights and Freedoms and demonstrates bad faith. In essence, Sergeant K was prepared to arbitrarily detain whoever was in the SUV on the basis that if they arrested the wrong person, then the right person would be in the house. It suggests that Sergeant K was willing, by way of process of elimination, to unlawfully arrest members of the public in order to locate the right suspect. R. v. Storrey, [1990] 1 S.C.R. 241 enunciates that any arrest has to be based upon reasonable and probable grounds, both from a subjective and objective point of view. In acting in an arbitrary fashion, Sergeant K undermined the reasonable and probable grounds necessary for a lawful arrest.

Moreover, one of the essential elements of any lawful arrest is verifying the identity of the person to be arrested. Corporal J wanted a closer look at the target, presumably to verify the identity of the person in the SUV or because he had concerns with the identification. Yet Sergeant K was prepared to risk arbitrarily detaining the wrong person in order to find the target.

Finally, section 28 of the Criminal Code creates a limited exemption from criminal liability for persons who are authorized to execute arrest warrants and mistakenly arrest the wrong person or keep such wrongfully arrested person in custody. However, it must be shown that the mistake of identity was made in good faith and on reasonable grounds. Given the serious concerns raised by Sergeant K's evidence, I am not prepared to find that this was a case of an honest mistake of identity. In his haste to order the takedown, Sergeant K exhibited an injudicious lack of consideration for the right to be free from arbitrary detention. He also ignored a request dealing with an essential element of the arrest, verifying the identity of the person being arrested, by his senior member at the scene. While there is no question that at the time Sergeant K gave the order he would have been completely focused on the capture of the target, this cannot come at the expense of the fundamental rights of citizens and, ultimately the safety of RCMP members and members of the public. Accordingly, his evidence undermines the good faith and reasonableness in terms of the mistake of identification of the target.

In the final analysis, the arrest of Mr. A.S. was arbitrary and unlawful. Sergeant K's decision to overrule Corporal J and direct the takedown was not an appropriate use of police powers. In this instance, Sergeant K was prepared to have the members under his supervision arbitrarily detain a member of the public in order to find and capture the target. This is not the normally excellent investigative police work typically demonstrated by the RCMP. In fact, this incident could have turned into a tragedy given all of the factors at play.

As a result, the members were not in the lawful execution of their duty during the arrest of Mr. A.S. It follows that any force used to effect that arrest was also improper. As such, I find that the subject members' use of force against Mr. A.S. was improper and therefore excessive.

Finding: Mr.  A.S.'s arrest was arbitrary and unlawful; therefore, any force used on Mr. A.S. was excessive by virtue of the unlawful arrest.

Fourth Allegation: The members unnecessarily damaged Mr. A.S.'s vehicle.

In fact, the exact wording of this allegation is "Improper vehicle search in that the members unnecessarily damaged Mr. A.S.'s vehicle." This wording was provided by the Commission. However, a review of Mr. A.S.'s original complaint does not reveal that he was complaining about an improper vehicle search.

It is quite apparent from a review of the photographs contained in the investigation documents that the SUV sustained significant damage. Given the fact that I have found Mr. A.S.'s arrest to be unlawful, any search of and damage done to his vehicle by the members during his arrest would also be considered improper.

Finding: I find that the subject members damaged Mr. A.S.'s vehicle.

Having considered the complaint, I hereby submit my Interim Report in accordance with paragraph 45.42(3)(a) of the RCMP Act.

_____________________
Paul E. Kennedy
Chair

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1 Mr. A.S. also alleged that the subject members committed statutory assault against him. The Commission does not have the jurisdiction to determine whether an RCMP member committed the Criminal Code offence of assault; that is a determination made by the courts. However, the Commission is empowered to make findings with respect to the use of excessive force.

2 Section 28 of the Criminal Code creates a limited exemption from criminal responsibility for those executing warrants who mistakenly arrest the wrong person if the mistake is made in good faith and on reasonable grounds.

3 It is reasonable to assume that "visual identification" could include the presence of a uniformed member or marked police vehicle.

4 The Commission is aware that tactical clothing can include "tear-away" elements, which would facilitate identification of the members as police officers.

5 An operational plan was not included with the RCMP's investigation materials.

6 Other factors also have to be considered, see the case of R v. Parasiris (June 12, 2008), Superior Court of Quebec, Longueuil, Cournoyer, J.C.S., where uniformed and badge-wearing Laval police officers used a battering ram to enter a suspected drug dealer's home during the very early morning hours to conduct a raid. Tragically, the suspect killed a police officer during the chaos that ensued. The suspect was recently acquitted by a jury that accepted his self-defence argument that he believed he was being attacked by criminal elements.