Chair's Final Report After Commissioner's Notice – Incident Related to Improper Attitude, Improper Search of Premises and Neglect of Duty

RCMP Act Subsection 45.46(3)

Vetted version for posting

August 17, 2009

The Complaint

On February 7, 2007, the Burnaby RCMP Detachment was advised of a suspected case of embezzlement an institute (the Institute). A request was made for RCMP members to accompany government officials to the Institute the next day to stand by and keep the peace when officials planned to suspend the board of directors and install a new administrator.

Constable C and Corporal D of the Burnaby RCMP Detachment attended the Institute the following day. They were present when the Director was removed from the premises and when Ms. A.L. was asked to retrieve a laptop computer owned by Institution F and believed to be in the possession of her mother, Ms. B.L., Institution F's bookkeeper who was out of town at the time. Constable C drove Ms. A.L. to the residence she shared with her mother along with one of the government officials, Ms. E. She then attempted to locate the laptop computer without success after which Constable C and Ms. E departed.

On July 10, 2007, Ms. A.L. who was an employee of the Institute filed a complaint with the Commission for Public Complaints Against the RCMP (the Commission) alleging that unknown members of the Burnaby RCMP Detachment failed to identify themselves, that one of the members conducted an unauthorized search of her residence and permitted a civilian to assist in that search, and that the member failed to advise her of her rights.

Pursuant to the terms of the RCMP Act (the Act), the complaint was investigated by the RCMP. During the course of the investigation, Ms. B.L. filed a separate complaint with the Commission on December 5, 2007 alleging that Constable C threatened her daughter in an attempt to gain entry and to search their residence, that he conducted an unauthorized search of the premises, that he failed to identify himself as a police officer, and that he showed bias by taking direction from Ms. E. For the purposes of this report I have joined the two complaints, which are similar in nature and involve essentially the same subject matter.

The RCMP's Final Report

Following its investigation, the RCMP provided its Final Report dated August 6, 2008, which did not support any of the allegations. The RCMP took the position that:

• 1) The members identified themselves.
• 2) The members were not required to advise Ms. A.L. of her rights.
• 3) The actions taken that day were initiated by the government and the police attendance was limited to standing by to keep the peace.
• 4) Constable C did assist Ms. A.L. in the search of her residence in order to expedite the process.

The Commission's Review and Interim Report

On January 5, 2009, the Commission concluded in its Interim Report that, while the members properly identified themselves and were not under an obligation to advise Ms. A.L. of her rights, they did not limit themselves to merely standing by and keeping the peace. The Commission concluded that the members assisted government officials in their efforts to secure evidence for their investigation by encouraging Ms. A.L. to cooperate and by participating in the subsequent search of her apartment.

The RCMP Commissioner's Notice

Pursuant to subsection 45.46(2) of the RCMP Act, the Commissioner is required to provide written notification of any further action that has been or will be taken in light of the findings and recommendations contained in the Interim Report.

On August 4, 2009, the Commission received the RCMP Commissioner's Notice. Acting Commissioner Sweeney agreed with my findings but qualified that agreement by adding that he did not find the search to be coercive or unauthorized. Acting Commissioner Sweeney concluded his Notice by stating that, notwithstanding his opinion, he would follow my recommendation and have a senior member of the RCMP review the matter with Corporal D and Constable C.

The Commission's Findings and Recommendations

Based on his additional comments, it is unclear to me whether Acting Commissioner Sweeney sees any problem with the actions of the RCMP members in question. My Interim Report speaks to the fact that, given that the RCMP anticipated launching a criminal investigation into the very same issues being investigated by government, the RCMP needed to be vigilant in acting only in the capacity of standing by to keep the peace. The members did not. They actively engaged in facilitating the search of the residence. Despite Ms. A.L.'s repeated refusal to cooperate with a search and expression of her desire to leave the office, government staff and RCMP members continued to pressure her into cooperating until after Corporal D's intervention, at which time she finally acquiesced.

Furthermore, contrary to Constable D's suggestion that Constable C attended Ms. A.L.'s residence because Ms. E was unsure what she would be walking into, Ms. E stated that Corporal D asked her to attend there with Constable C. Constable C expressed his desire to locate the computer and it was upon this basis that Constable C conducted his search of Ms. A.L.'s home.

To be clear, these actions should not have taken place. Accordingly, I am amending my original recommendation.

Recommendation: That a senior member of the RCMP review with Corporal D and Constable C the circumstances giving rise to the A.L. and B.L's complaints, in particular why their actions were unreasonable.

Pursuant to subsection 45.46(3) of the RCMP Act, I respectfully submit my Final Report and, accordingly, the Commission's mandate in this matter is ended.

_____________________
Paul E. Kennedy
Chair