Chair's Interim Report – Incident Related to Improper Arrest and Improper Attitude

RCMP Act Paragraph 45.42(3)(a)

Vetted version for posting

September 4, 2008

Overview

On April 28, 2007, Constable E of an RCMP detachment in British Columbia responded to a request by Ms. A's estranged husband, Mr. B, to keep the peace while he attended the matrimonial home to collect some of his personal belongings. Ms. A was living in the matrimonial home at the time. Upon arriving at the residence, there was a heated verbal exchange between Ms. A and Mr. B. Ms. A began to close the door on Constable E's foot, which was in the doorway. During an exchange between Constable E and Ms.  A, Mr. B pushed his way in the door. Ms.  A pushed him, and Constable E arrested her for breach of the peace. Constable E placed Ms. A in the rear of her police vehicle while Mr. B collected his personal belongings. Mr. B loaded two pickup trucks and a trailer with items, spending two hours at the home.

On July 30, 2007, Ms. A complained to the Commission for Public Complaints Against the RCMP (the Commission) essentially alleging that Constable E improperly arrested her for breach of the peace and displayed bias in her dealings with Ms. A

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 April 16, 2008, did not support the complainant's allegations.

Ms.  A was not satisfied with the RCMP's disposition of her complaint. She requested a review by the Commission on May 2, 2008. The Commission received the investigation documents relating to this matter from the RCMP on May 26, 2008.

For the reasons outlined below, the evidence leads me to conclude that Constable E improperly arrested Ms. A for breach of the peace and improperly detained her for two hours. I also conclude that Constable E was not biased in her dealings with Ms. A, but did allow Mr. B to manipulate the situation.

Commission's Review of the Complaint

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

My conclusions and findings are based on a thorough examination of the following materials: Ms. A's complaint, request for review and other correspondence provided to the Commission; the Commissioner's Final Report; Constable E's written statement, dated February 25, 2008; Constables E's and F's police notebook entries; occurrence reports; and various routine correspondence relating to the public complaint administrative process.

First Allegation: Constable E improperly arrested Ms. A for breach of the peace.

A review of Constable E's statement reveals that on April 28, 2007, she spoke to Mr. B at the front counter of the RCMP detachment. Mr. B requested that the police "keep the peace" while he attended his matrimonial residence in order to collect a few personal belongings. Constable E's contemporaneous police notebook entry reflects this request as well.

According to Constable E's statement, Mr. B "stated that he was going through a divorce with his wife, Ms. A., and he needed to obtain some items from the residence. Mr. B was prepared to attend immediately and had friends and family available to assist in 'moving.'" Constable E's police notebook entries reflect that Mr. B indicated that he needed certain belongings for living and for work.

Based upon her notes, Constable E confirmed that there was no court order in force at the time and conducted a number of police database records checks. She learned there was no history of domestic violence reported to police. However, there was a report of an incident from the week prior. Constable E had been on duty that day, and she remembered being told by the member who was dispatched to Ms. A and Mr. B's home that Ms. A had changed the locks on the home. A dispute had arisen between Mr. B and Ms. A when Mr. B attended the matrimonial home to find the locks changed and he was unable to enter the home. Based upon the RCMP occurrence report, Mr.  B gained entry into the home by kicking in the door and was able to retrieve some personal items on this occasion.

According to Constable E's statement, Mr. B's legal counsel instructed him to bring the police with him to collect his belongings to prevent a similar incident the next time.

Constable E's statement reveals that she attended the matrimonial home with Mr. B and Constable F. She knocked at the residence door and was met by Ms. A. According to Constable E, Ms. A was upset at the attendance at her residence by Mr. B and the police. Ms. A advised Constable E that she had documents from her lawyer stating the division of property, but she was unable to locate them. At that point, Mr. B interjected and stated that he had the right to enter the house and that there were no court documents, as they had been separated for only two weeks. Mr. B told Ms. A that he had brought the police so that she would not accuse him of breaking into his own home and that he "would go in anyways."

Constable E's evidence reflects that she then asked Ms. A if she alone could come in and talk to her, but Ms. A refused and "attempted to slam the door on Constable E's foot." Constable E stated:

At this time, C[onstable] E felt that officer safety was a high concern as
M[s. A] was argumentative and slamming the doors. C[onstable] E felt that this incident would only continue as both Mr. B and M[s. A] were strong on their opinions of the issue and would not back down and continue to request the assistance of the police.

Constable E then stated that she tried to explain to Ms. A that Mr. B was in fact right and that "he is allowed in the residence and that she could easily be found on the other side of this situation." At that point, Ms. A refused to speak with Constable E any further, and then Mr. B pushed open the door and entered the residence. According to Constable E's statement, Ms. A then pushed Mr. B in an attempt to have him leave.

Constable E is unequivocal in her evidence that at no time did Mr. B push Ms. A. According to Constable E, Mr. B then walked upstairs and Ms. A continued to yell at him. Constable E stated that she attempted to calm Ms.  A down; however, she was unable to be controlled. Constable E instructed Constable F to arrest Ms. A for breach of the peace and advised him to hold her in his police vehicle, "hoping that she would be calm enough to talk rationally with." Once Ms. A was calm, Constable E explained to her that she, Constable E, did not want to charge her. She advised Ms. A that:

...this situation needed to be dealt with in order for the two of them to move on and so no further calls for police assistance (i.e. Break and enter in progress which really wasn't.)

Constable E then explained to Ms. A that she was being detained in order to prevent further problems and that she could contact a lawyer, but that she would be released once Mr. B retrieved some personal belongings. Constable E stated that Ms. A asked if she could see everything that was being taken from the home. Constable E offered a pen and paper to record what was being taken from the residence, which she refused. Ms. A was also provided water. Constable E stated that Ms. A became more understanding of the situation and apologized for her behaviour. Ms. A was detained for approximately two hours.

According to Ms. A's evidence, she and Mr. B were represented by legal counsel with respect to their matrimonial issues and that a process was being put in place to deal with the family property. Ms. A stated that she was caught by surprise when Constable E and Mr.  B showed up at her residence. According to her evidence, Constable E advised that she was there to "keep the peace" while Mr. B came to take his "personal things." Ms. A said she stood with the door partially closed trying to talk with Constable E, but Mr. B kept interrupting. She says she and Mr. B had a heated argument.

Ms. A revealed that she advised Constable E that Mr. B had previously retrieved his personal belongings and that the lawyers were now involved. Ms. A went into some detail about the proposed division of property and how she did not agree with it.

Ms. A's evidence indicates that Constable E asked her if she had documentation from her lawyer, but she advised that her lawyer had not sent her a copy. According to Ms. A, she and Constable E had an exchange concerning Ms. A's fear of her husband and the fact that she changed the locks. Ms. A felt that Constable E did not believe her and said that she was being "unreasonable."

Ms. A stated that she then went to close her door and Constable E put her foot in the door to prevent it from closing. At that point, Mr. B pushed the door open. She stated that she lost her balance and that she pushed the door back against Mr. B. She said that she "could not possibly hold him back and [Mr. B] pushed the door open." Ms. A says her husband is "an athlete of 6'2" or 3" and 180lbs" and she is 5'3" and 122 pounds. Ms. A said Constable E then stated "Now you are under arrest for breeching [sic]the peace."

Ms. A was handcuffed and walked out of the house by Constable F down the driveway and into the rear of the police vehicle. Ms. A stated that this was done "in plain view of the neighbourhood." She recalled stating to the Constable F "I don't understand. So he can push me, but I'm not allowed to push back."

Ms. A's evidence is consistent with Constable E's in terms of the rest of the incident; although she stated that she was unable to see what was being taken from the home. She declined the offer of a pen and paper to write down all that was being removed because "it would have been a futile endeavour."

Analysis

As the Commission has noted in previous cases, civil disputes or property issues are extremely problematic from a policing perspective. The public often makes unrealistic and sometimes unreasonable demands on the police for help in disputes that are civil rather than criminal in nature. The police are often caught in the middle with one or both sides trying to use them to gain a tactical advantage. In emergency situations, they must act decisively to minimize risk to public safety and to minimize any risk to officer safety. In non emergency situations, the police must be watchful against inadvertently becoming involved in matters better resolved by the parties and their lawyers in the courts.

In this case, Constable E was requested by Mr. B to attend the residence where Ms. A was currently living to stand by and keep the peace whilst Mr. B removed some personal belongings from what he explained was his former residence. This request apparently was founded upon legal advice received by Mr.  B. Mr. B explained that he and Ms. A were in the middle of a divorce and that he needed some of the belongings in the residence. Constable E's notes reflect the fact that she was aware that there was neither a court order nor any peace bond in effect at the time.

The evidence suggests that after some initial discussion at the door of the residence, Ms. A was adamant that Mr. B was not allowed in the home, and she attempted to close the door. Constable E stuck her foot in the door in order to continue the dialogue. Although Constable E advised that officer safety became a concern at that point due to Ms. A's aggressive behaviour, Constable E did not arrest Ms. A for closing the door on her foot. Rather, Constable E arrested Ms. A when she pushed her husband as he entered the home.

It is apparent that notwithstanding Constable E's wish to "continue the dialogue" she had no legal authority to place her foot in Ms. A's door to prevent it from closing. Moreover, by doing so it provided Mr. B with the opportunity to push his way through the door and enter the home. Once Ms. A advised that she would not allow Mr.  B into the home, absent a court order or other legal documentation, Constable E should have advised Mr. B to seek advice from his lawyer and not attempted to "negotiate" with Ms. A particularly with her foot preventing the door from closing. Moreover, during the "negotiation" Constable E appears to have opined that Mr. B was entitled to enter the family residence. It is difficult to determine how Constable E reached this conclusion. Again, Mr. B's entitlement to enter the home was a family law issue that should have been left to the determination of the lawyers involved or the court.

I acknowledge that this was a difficult situation for Constable E. On its face, Mr. B's request to enter the home and retrieve some personal belongings and work tools may have appeared reasonable. Constable E may also have been attempting to deal with this situation from the perspective of expediency and community policing. She references the fact that both parties were "strong on their opinions" and would likely continue to request the assistance of the police. However, an RCMP member should not intervene in a civil matter unless authorized by law. This principle serves to protect both members of the public from unwarranted police intervention and RCMP members from being forced to intervene in awkward situations. In this regard, prior to a member engaging in a civil/matrimonial property matter, consideration should be given to the following factors:

• Are the circumstances exigent in nature such that there are grounds to believe that harm or injury could result to one or both parties?
• Are the parties represented by legal counsel?
• Is there a court order or other legal documentation in effect?

The Commissioner indicated in PC-2000-1092 and PC-2003-0865, that given the number of civil-related disputes that result in calls to the RCMP, relevant operational policy guidelines need to be established to provide guidance to members under these circumstances. If such guidelines and/or policies have not yet been drafted, it is recommended, once again, that this be done on a priority basis.¹ Accordingly, given the absence of RCMP policy guidance in this area I am not prepared to fault Constable E for her decision to assist Mr. B with his request to "keep the peace."

However, I find that Constable E improperly arrested Ms. A for breach of the peace. Constable E had no authority to stop Ms. A from closing her door. By doing so it precipitated the escalation of events resulting in Ms. A's arrest. In essence, Constable E unwittingly allowed herself to be drawn into the dispute. Upon Ms. A attempting to close the door, Constable E should have advised both parties to resolve the issue through their respective lawyers and left the scene.

Moreover, I note that Ms. A was detained for two hours. RCMP policy OM III.2.F.5.a. Arrest, Persons Arrested for Breach of the Peace states:

A person arrested under Sec. 31, CC must be released as soon as the need for detention no longer exists.

Given the evidence indicating that Ms. A calmed down almost immediately upon being placed in the rear of the police vehicle and apologized for her behaviour, she should have been released at that point, as the need for detention no longer existed. This would also have permitted Ms. A an opportunity to view and record what was being taken from the home.

Recommendation: That a senior member of the RCMP apologize to Ms. A for the fact that she was improperly arrested for breach of the peace and detained for two hours and was not released once the need for detention no longer existed.

Second Allegation: Constable E displayed bias in her dealings with Ms. A.

In this instance, Constable E agreed to keep the peace while Mr. B attended the matrimonial home in order to retrieve some personal belongings. However, she should have been alerted to the fact that perhaps more than a bag of personal items was intended to be removed when Mr. B's family and friends arrived at the residence with pickup trucks and a trailer. Indeed, far more than a few personal belongings were removed from the home. Mr. B loaded up two pickup trucks and a trailer. He and his relatives were at the home for two hours taking out a bed, a TV, a stereo, a freezer and other items as noted by Constable E. She finally put an end to the removal of items when he began to take two kayaks. It is apparent that Constable E did not respond quickly enough when it became evident that Mr. B was removing more than just a few personal belongings. While Constable E did lock Ms. A's bedroom door, she should also have stopped the removal of large items from the home given the lack of a court order or any direction from either lawyer.

There is some recognition by Constable E that Mr. B was attempting to manipulate the situation. In her statement she explains:

Mr. B began manipulating the situation and taking out items that
C[onstable] E does not feel to be "personal" or necessary at that time.

In her occurrence report, Constable E also noted "[Mr. B] seems somewhat manipulative."

While there is no evidence that Constable E was purposely biased in her dealings with Ms. A, it is apparent that she did allow Mr. B to manipulate the situation. It would have been reasonable to expect Mr. B to be able to collect a few personal belongings within 15 or 20 minutes. Instead, he was in the home for two hours, loading up two pickup trucks and a trailer. Members must be ever vigilant to ensure that they respond appropriately and do not allow themselves to be used by either side of a matrimonial dispute. In this instance, it is apparent that Constable E was co-opted by Mr. B. However, her statement and occurrence report reflect that, in hindsight, she recognized that she had been manipulated. I am satisfied that Constable E will be alert to this issue in future.

Finding: Constable E was not biased in her dealings with Ms. A.

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

1 The Commission requested from the RCMP its national, E division and detachment policy relating to member assistance in civil/matrimonial assistance; however, such policies did not include direction on factors to consider prior to providing assistance in a civil/matrimonial matter.