Report Following a Public Interest Investigation into a Chair-Initiated Complaint Respecting the Death in RCMP Custody of Mr. Robert Dziekanski
Appendix Q – Involvement of Staff Relations Representative
As noted in the body of the report, prior to the commencement of interviews with the involved RCMP members by IHIT investigators, the members met with Staff Sergeant (then Corporal) Mike Ingles, the Staff Relations Representative (SRR) collectively and at least Constable Millington met with him individually.
The issue is not the fact of the meeting, but the perception it conveys. Did the SRR and the member meet alone? For how long? What was discussed? What was the resulting input or influence, if any, of the SRR's involvement? Who called the SRR and why?
The Commission subsequently posed questions to Staff Sergeant Ingles with respect to both the meeting and the nature of the duty to account statements taken from the members. In his response Staff Sergeant Ingles stated that no formalized duty to account requirement exists. Staff Sergeant Ingles stated that:
Specifically there is an "unwritten" acknowledgment that our members should not be withholding any information that would either a) compromise any investigation, or b) place any member of the public or another member in danger. Unless a member has knowingly committed an offence they will almost always want to provide their version of what occurred. When and how that should happen is another, more complex, matter.
He went on to state that:
A member does have a [sic] "Rights" as outlined in the "YOUR RIGHTS AND OBLIGATIONS – A Guide for Members of the RCMP" document that can be found on the SRR website. As even the investigators are often at odds on what a member is "required" to provide our role is to gain a rudimentary understanding of what has occurred and explain to the members what is likely to occur, what their options are, and how they can assist the investigation while ensuring they are not placing themselves in legal peril.
In the case of YVR ... I will note that even the understanding of the investigator(s) of our role and position is unclear. ... Essentially we are free from the constraints of the investigator role, focused on ensuring that the mental and physical health of the member are being addressed, and based on our frequent involvement in such situations being able to provide guidance to a member who in most cases, specifically an in custody death, has not been involved in a similar situation previously. We also understand that there are certain things that an investigator needs to know to allow the investigation to proceed. ... the involved member likely has not experienced this before and to have the guidance of someone who is neither their supervisor nor the investigator is often helpful.
I suppose considering there is no policy that requires a member to provide a statement there is no need to have a policy that directs when the member can consult an SRR. The [sic] are free to contact and consult us on any matter related to their welfare and employment.
I note that RCMP "E" Division guidelines (which are not national in scope) do contemplate the duty to account. The RCMP "E" Division Internal Investigations Guidelines state:
All members are accountable to the RCMP for their actions during the course of their duties. Included in this accountability is an obligation to provide relevant information when requested.
This duty to account should not be confused with providing a voluntary statement to an investigator. The duty to account could simply encompass the completion of standard paperwork such as form 1624 or answering basic questions pertaining to an incident that could be expected from any supervisor or fellow member in other investigations. The request for a voluntary statement made to a member subject of a Part IV investigation should be separate and distinct from an investigator's request for information to satisfy the duty to account or the RCMP's "right to know". The voluntary statement may encompass more detailed questioning by the investigator pertaining to the alleged incident.
The role of the SRR is not to provide legal advice. Since SRRs do not provide legal counsel for members, conversations between the involved member and the SRR are not therefore privileged in the legal sense, although they are confidential.
According to Staff Sergeant Ingles (the SRR), after being called by the Richmond Detachment SRR sub-representative, he arrived at YVR at approximately 3:45 a.m. on October 14, 2007. He spoke with the four involved members and at one point spoke alone for approximately two minutes with Constable Millington to determine the latter's emotional state (he was aware it was Constable Millington who had deployed the CEW). The SRR stated that he did not discuss any details of the incident with the involved members (neither on the night of the incident nor at subsequent meetings with the involved members) and that he was with them at the YVR sub-office until the arrival of Corporal Brassington of IHIT.
Staff Sergeant Ingles wrote that:
We did not have discussions relating to details of the incident. I advised all four members that I didn't want or need to get into any details of the investigation, and that they should not discuss details of what had occurred during the incident with each other until after they had given statements.
He went on to state that he:
... advised the four members of the differences between a "statement" and accounting for their actions in the first instance, often referred to as a "duty to account". I advised them that they were not required to provide statements right now (meaning that morning), simply providing a short outline of their involvement as they would in any file is sufficient at this point. I explained that this was an extremely stressful time for everyone involved and that their recollections would likely be more clear once they had gotten one or more sleep cycles. I was advised by them all, but do not specifically recall the words or gestures in reply from any particular one of them, that the facts were the facts and they didn't have any problem providing a statement to the investigators.
Staff Sergeant Ingles wrote that at approximately 4:40 a.m. Corporal Brassington stated to the four involved members:
You need to do a duty to account. If you are willing to give a statement, I'll take that as well. You guys aren't a suspect or anything like that.
Staff Sergeant Ingles wrote that he:
... commented to the 4 members that I didn't think a statement at that time, following a long shift and a traumatic incident, was a good idea, however they could make their own decisions on if and when they would provide a statement.
I have no knowledge of the content of the conversation between Constable Millington and Staff Sergeant Ingles, other than Staff Sergeant Ingles' comments and Constable Millington's comment in his statement that Staff Sergeant Ingles told him that he had the option to sleep on it and not give a statement right away to ensure that he (Constable Millington) recalled all of the details.
I have received a copy of the notes kept by Staff Sergeant Ingles with respect to the morning of the incident (October 14, 2007) and his meeting with the four involved members at the YVR RCMP sub-detachment office. His notes of that meeting consist of one page and one line on a second page in a small police notebook. He has indicated that he kept no notes of subsequent meetings with the four involved members. As I have indicated in the part of this report addressing what I perceive to be an ongoing lack of quality in police note keeping, I find these notes to be inadequate to properly capture the content of the discussion between Staff Sergeant Ingles and the responding members.
In a response to questions posed by the Commission with respect to the involvement of Staff Sergeant Ingles and the duty to account statement, Staff Sergeant Ingles cited the following RCMP regulations pertaining to the Staff Relations Representative Program as his authority for attending:
RCMP Regulations
Division Staff Relations Representative Program
96. (1) The Force shall have a Division Staff Relations Representative Program to provide for representation of the interests of all members with respect to staff relations matters.
(2) The Division Staff Relations Representative Program shall be carried out by the division staff relations representatives of the members of the divisions and zones who elect them.
In support of his attendance, Staff Sergeant Ingles also cited the SRR Constitution which he said gives us direction on duties. He quoted from Article 13 of the SRR Constitution (emphasis added by Staff Sergeant Ingles):
ARTICLE 13 – DUTIES OF STAFF RELATIONS REPRESENTATIVES
A. The duties of the SRRs are as follows:
(i) Providing information, guidance and support to RCMP members, and in particular:
(a) Providing RCMP members with information on developments nationally, Regionally and in the Division, including but not limited to national policies, SRR Caucus positions, decisions and local developments;
(b) Reporting information of RCMP-wide interest for broader dissemination through the Program Director;
c) Providing advice, guidance and active support to members on the human resources implications and applications of legislation, policies and procedures as they affect them;
(d) Establishing and maintaining processes and mechanisms for effective two-way communication with members and Divisional management for the effective resolution of issues and disputes; and
(e) Arranging or engaging in facilitation and mediation to resolve issues and disputes between members and management.
(ii) Participating in divisional meetings where discussions will directly affect the terms and conditions of employment of members;
(iii) Representing members' interests and ensure their participation in the overall management of the RCMP, including but not limited to the following:
(a) Participating in studies, task forces and committees established by the RCMP where they impact or may potentially impact members, at the national, Regional, Divisional, and other levels;
(b) Participating as a member in one or more of the National Committees;
RCMP Staff Relations Representative Program Constitution (2007-10-04 Final)
I Consulting with members and/or their representatives on issues affecting or potentially affecting them that are the subject of discussion in National Committees, at SRR Caucus and Regional Caucus or as part of studies or reviews; and
(d) Subject to RCMP Policy and guidelines established by the SRR Caucus, represent members' interests with the media and with external stakeholders;
(iv) Supporting the overall effectiveness of the SRR Program, including but not limited to the following:
(a) Supporting the involvement of the Sub-representatives of his/her division, zone or area designated directorate to have the training, information and support they need to be effective;
(b) Participating in meetings of the SRR Caucus unless excused by NE or prevented by any sanction imposed under the SRR Constitution;
I If unable to attend any meeting of the SRR Caucus, appointing a replacement
Sub-Representative to attend; and
(d) Supporting, advancing and carrying out all official policies, goals and objectives of the SRR Program.
It appears to me from the response of Staff Sergeant Ingles that, in his view, the role of the SRR is to filter information as between the involved member and the investigators. I see this as a dangerous and potentially precarious situation. The investigators, particularly in the early stages of an investigation, require facts which are not adulterated or influenced. The investigator should be able to conduct the interview of the involved member without the presence of the SRR.
My concern is that prior to the commencement of taking a statement from the involved member, the investigator could be influenced by information or a version of events provided by the SRR. To paraphrase an old maxim, an impartial investigation must not only be done, it must be seen to be done. This is particularly true when the police are investigating the police.
The protocol of members meeting with an SRR has been noted in previous187 matters which have been investigated by the Commission. Although such meetings may have legitimacy, the optics are such that members could be coached by the SRR on what to say or how to react during their subsequent statement(s). I stress that I have no evidentiary basis to impute inappropriate motives or conduct to the SRR in this instance.
I recommended in a previous decision188 that the RCMP should consider implementing policy with respect to the issue of the duty to account statement. Such policy would provide clarity for RCMP members as well as the public in terms of the nature of such a statement, when it is required, what information is required and the use to which it may be put.
187 Final Report on Chair-Initiated Complaint into the Shooting Death of Ian Bush – November 28, 2007.
188 Ibid.