Chair's Interim Report – Incident Related to Service, Improper Search of Premises, Oppressive Conduct and Improper Arrest

RCMP Act Paragraph 45.42(3)(a)

Vetted version for posting

February 5, 2008

Overview

On August 30, 2005, Constable B and Corporal C of a municipal RCMP detachment in Alberta attended Mr. A's place of work. The officers detained the complainant, transporting him to the RCMP detachment. When Mr. A would not enter the detachment building, Constable B arrested him without a warrant for the offence of mischief in relation to an incident that had occurred the evening before at the RCMP Police Dog Service Training Centre ("the kennels"). Mr. A was detained for several hours in the RCMP holding cells and then released without charges. During the time he was detained in the cells, Constable B attended Mr. A's home where the latter's wife showed him his firearms and a dagger, which the member seized.

On November 16, 2006, Mr. A filed public complaints with the Commission essentially alleging that Constable B and Corporal C failed to take complaints he attempted to make; searched his house without authority; made threats against him; unfairly confined him; and came into his place of work to belittle him.¹

As required by the RCMP Act, the complaint was investigated by the RCMP. According to the Act, on completion of the investigation the RCMP Commissioner (or his/her 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 March 8, 2007 did not support Mr. A's allegations.

The Commission received Mr. A's request for review on October 23, 2007. The Commission requested the relevant materials on November 7, 2007 and received them on December 12, 2007.

For the reasons outlined below, the evidence leads me to conclude that Constable B improperly arrested and detained Mr. A for mischief. However, I find that the other allegations are not supported.

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.

My findings are based on a careful examination of the following material: the complaint, Mr. A's request for review and attachments thereto; the Commissioner's Final Report and the public complaint investigation report and all documents appended thereto, including a copy of the RCMP Detachment Operational File, Olds Detachment File, a memorandum from Sergeant D to the NCO i/c Olds Detachment/OIC PDS Kennels, and an opinion letter from a Crown Prosecutor regarding the assault on the complainant.

Background

On August 30, 2005, Constable B was advised by Sergeant D that Mr. A's wife was being escorted to the RCMP detachment from the RCMP Police Dog Training Centre where she worked. She indicated that she had decided to leave Mr. A and was concerned about his and her safety because of prior threats involving firearms.

Mr. A's wife provided a statement to Constable B where she disclosed that the previous evening Mr. A had attended the kennels when she and some co-workers were having a drink celebrating a member's graduation. Mr. A and his wife crossed the parking lot together where there was brief exchange of words, after which they both left in separate cars. The complainant's wife also disclosed that later that same evening she hit and kicked her husband, and drove her car away with her husband on the hood. She did not reveal being physically assaulted by him nor did she mention anything about firearms in her written statement.

Constable B and Corporal C then attended Mr. A's place of work where they asked him to come to the detachment with them. The complainant was initially cooperative but once they arrived at the RCMP Detachment, he walked away from the building stating: "You have no charges on me, I am leaving." Constable B then arrested him without a warrant for mischief in relation to his attending the kennels the night before and escorted him into the detachment. Mr. A was detained in a cell for several hours.

First Allegation: Constable B and Corporal C failed to take complaints from the complainant.

Mr. A's evidence indicates that after being arrested and taken into the RCMP Detachment, he stated to the officers: "[...] okay you want to do this this way I want to lay an official complaint of RCMP Officers drinking at the dog kennel, driving out in government vehicles, sexual harassment, disregard for public saftey [sic] and [my wife] charged with assault and battery [...]."

The public complaint investigation report notes that Constable B recalls Mr. A talking about the members at the kennels while he was being booked in, being upset with them but he could not recall the exact content of the complainant's comments. According to the public complaint investigation report, Constable B advised that at no time did Mr. A state that he wished to have his wife charged with anything. The public complaint investigaton report notes that Corporal C did not recall Mr. A "making any allegations against Kennel staff or members that he wished investigated," though he indicated the complainant was upset with these persons.

The evidence suggests that Mr. A did raise the issue of the members' conduct at the RCMP Police Dog Service Training Centre, when he was arrested and taken into the RCMP detachment. In fact, both officers remember that the complainant was upset with those members. However, contrary to Mr. A's claim, both officers categorically deny that the complainant complained about being assaulted by his wife or about wanting to file a public complaint concerning the members at the kennels. There is a distinction to be made between venting about a situation and making a request to file a public complaint. The consistent evidence of both officers is that Mr. A neither made a request to file a public complaint nor claimed that his wife assaulted him. Accordingly, I find that Constable B and Corporal C did not fail to take a public complaint from Mr. A and that Mr. A did not complain about being assaulted by his wife.

Finding: Constable B and Corporal C did not fail to take complaints from the complainant.

Second Allegation: Constable B searched the complainant's house without authority.

A review of the evidence indicates that after arresting Mr. A outside the detachment for the offence of mischief and lodging him in the detachment cells, Constable B immediately attended the joint residence where he met Mr. A's wife. Mr. A's wife invited Constable B into the home and proceeded to show him where Mr. A's unregistered firearms were located. Constable B seized two rifles, a box of full ammunition and a punch dagger. The member returned to the detachment where he placed the items in the exhibit locker. The firearms and ammunition were eventually released to Mr. A's brother who possessed a valid Firearms Acquisition Certificate and signed a letter of intention to register the two rifles. The dagger was not returned, as it was a prohibited weapon.

While Mr. A's arrest and detention were highly improper, based on the circumstances, the search of his home was lawful. Constable B was invited into the home by Mr. A's wife and therefore he did not require a warrant to enter the premises nor to search it, as he had her consent. Moreover, Mr. A's wife wanted the RCMP to take the firearms away because she had concerns for Mr. A's safety as well as her own in relation to the guns. Constable B had a duty and responsibility to seize the unregistered firearms, ammunition and prohibited weapon once he was at the home and he saw them. To knowingly allow those items to remain at the home would have been to ignore his duty as a law enforcement officer.

Finding: Constable B did not unlawfully search the complainant's home.

Third Allegation: Constable B and Corporal C made threats against the complainant.

Mr. A states that when the two officers attended his place of work, he went outside with them. Mr. A states that one of the officers told him to get into the police vehicle and he asked if he was under arrest and charged with anything. The officer responded no, not at this time. Mr. A indicated that he did not wish to get in the car and states that the officers then told him "to get in the car or he would take [him] down and stuff [him] in." The complainant then got in the police vehicle. At the detachment, Mr. A got out of the police vehicle and walked away from the detachment building toward a mall. The officer asked him where he was going and Mr. A said that he was leaving. According to Mr. A, the officer threatened him by "saying he would take [him] down and drag [him] in kicking and screaming if they had to."

Constable B's occurrence report for the incident indicates as follows: "Attended and picked up [the complainant], he was initially very cooperative until I started explaining what I wanted to do. When asked to come to the detachment, he became less cooperative and I advised that [he] is being detained and advised him of his rights on detention." At the detachment, Constable B notes that Mr. A is "very uncooperative and refusing to go into the detachment." He then placed Mr. A under arrest and escorted him into the detachment where he read him his rights from the card and took him to the phone room. According to the public complaint investigation report, Constable B stated that he did not tell Mr. A that he would put him down or anything to that effect; he only verbally told him he, the complainant, was going to accompany him into the detachment.

A review of the evidence suggests that any statements made to Mr. A were likely made by Constable B. Corporal C appears to have played a secondary role in assisting Constable B with the arrest of Mr. A. Moreover, Corporal C indicated to the public complaint investigator that the tone outside of Mr. A's place of work was calm and non-confrontational. Corporal C recalls that Mr. A did become upset outside the detachment and did not want to enter the detachment building but that Constable B never threatened him.

Mr. A's allegation appears to suggest that a member threatened him with violence if he did not cooperate with them. There is no question that Constable B likely issued a command to Mr. A to peacefully enter the police vehicle and then later at the detachment building. Given the passage of time, due in part to the delay in the filing of Mr. A's complaint, it is reasonable to assume that Mr. A would not be able to remember the exact wording of these commands although he would likely remember Constable B's intent to get him to do something he did not wish to do (and which he had no lawful authority to do). Accordingly, based on the consistent evidence of the two members, I find that Constable B did not use threats of violence with Mr. A. However, this determination does not mitigate the fact that Constable B had no lawful grounds upon which to either detain or arrest Mr. A.

Finding: Constable B and Corporal C did not threaten the complainant.

Fourth Allegation: Constable B improperly arrested and detained the complainant for public mischief.

There is no dispute that once at the detachment Constable B arrested and detained Mr. A for mischief in relation to his attendance at the RCMP Police Dog Training Centre the evening before. Constable B states that the reason he arrested Mr. A was due to the fact that he was refusing to go into the detachment building cooperatively. In his occurrence report Constable B writes: "[...] I placed him under arrest and escorted him into the detachment where I read his rights from the card and took to him [sic] to phone room. I advised that he is under arrest for mischeif [sic] re: attending the Kennels. but that my main concern was getting [the complainant's wife] taken care of safely." Constable B was asked by the public complaint investigator if at any time he planned on charging Mr. A for the "Mischief to the Kennels." Constable B stated he did not but they felt they needed to know that Mr. A's wife would be safe in going back to the residence and to do so meant knowing that Mr. A was accounted for. Subsequently, Constable B released Mr. A without charges. No charges were ever laid in relation to either the kennel or the domestic incident.

I am concerned that there were simply no grounds upon which to arrest Mr. A either for the domestic dispute or for the stated reason, mischief.² Indeed, the statement provided by Mr. A's wife to Constable B discloses that she repeatedly assaulted Mr. A with a hair brush, the car, and a kick. She does not provide any evidence that she herself was assaulted by him. She was clearly annoyed and felt harassed by his behaviour but that does not amount to assault. Her statement does not make any mention of firearms. While she did mention previous threats involving firearms to an officer, it is unclear what she was referring to and could actually have referred to him threatening to take his own life based on comments contained in some of the other evidence. In any event, she did not repeat anything about threats or firearms in her written statement. Constable B's occurrence report for August 30, 2005 notes that another officer advised him that "She is now trying to leave him [the complainant] and is concerned about his and her safety because of prior threats involving firearms." Another occurrence report states: "This was [the complainant's wife's] breaking point after years of psychological abuse and she wanted help leaving. [The complainant] was detained while [the complainant's wife] cleared out her necessary belongings and his unregistered firearms were seized. No charges."

In terms of the mischief offence, based on Mr. A's wife's statement there were simply no grounds upon which to arrest Mr. A. She describes the incident as Mr. A knocking at a trailer door at the kennel compound, where she and a few other people were finishing a drink that they had been given earlier at a graduating ceremony for one of the members. She says that she and Mr. A left immediately, and as they crossed the parking lot, Mr. A said a number of things to her. She responded. When they reached the administrative building, Mr. A's wife went in to retrieve her personal belongings. She says another female co-worker was present and appeared concerned for her. She and Mr. A then left the kennels in separate vehicles. Constable B's occurrence report suggests that Mr. A "snuck in unauthorized" but this is nonsense. The complainant did not scale a fence or breach the perimeter in some way; he drove his vehicle into the parking lot and then knocked on a trailer door where a number of people were having a drink. He was met by his wife. This was a non-incident and for Constable B to concoct this as a reason to arrest Mr. A and detain him for several hours in a jail cell was a flagrant abuse of power.

From the outset, the whole premise upon which the members were conducting themselves was improper. It is apparent that they were providing "help" to an RCMP employee, creating a pretense under which to detain and then arrest her husband, so that she could go to her home to collect some personal things because she decided to leave him. There appears to have been no consideration given to Mr. A's rights or freedom. Instead, the only solution considered appears to have been detaining him in a jail cell for several hours arguably constituting forcible confinement. It is no answer to say that there was never any intention to charge him or that he was read his rights and given an opportunity to talk to legal counsel. The damage was done. He was deprived of his liberty for no lawful purpose.

A lawful means of ensuring that Mr. A's wife could collect her personal belongings would have been for Constable B to attend with Mr. A's wife and to deal with the rifles under the firearms legislation and the Criminal Code.

Finding: Constable B abused his power by improperly arresting and detaining the complainant for mischief.

Fifth Allegation: Constable B and Corporal C came into the complainant's place of work to belittle him.

There is no dispute that Constable B and Corporal C attended Mr. A's place of work. Mr. A states: "When I was done work, I was in the office with my boss, secretaries, co-workers and customers. Two constables came in [...]. They asked me to come outside they wanted to talk to me. I said okay and went out. I asked them how I could help them."

Constable B's occurrence report notes that he and Corporal C attended Mr. A's place of work at approximately 4:50 p.m. and notes that Mr. A was initially very cooperative. Both members indicated to the public complaint investigator that they waited until after the complainant's shift was over in order that he could be dealt with in the least disruptive manner as possible. Both recall asking to speak with Mr. A outside in order that any conversation they would be having about detaining him would be away from his co-workers.

Mr. A says that the two subject members appeared at his workplace to belittle him. In short, that is exactly what their presence at his workplace did and for no lawful purpose. The officers should not have attended Mr. A's place of employment at all for their stated reason, which was to detain the complainant long enough to allow Mr. A's wife time to safely collect her personal belongings. Constable B stated that he had no intention of charging Mr. A; he just wanted him "accounted for." The fact that the members appear to have attempted to minimize the embarrassment and intrusion that their presence at his workplace would cause to Mr. A by attending at the end of his shift and speaking to him outside does not diminish this otherwise troubling conduct. No further recommendations are necessary in this regard.

Finding: Constable B and Corporal C should not have attended the complainant's place of work; however, they did not purposely belittle him.

Comment

I note that Sergeant D, who signed the Commissioner's Final Report, was also involved in the initial incident. It was Sergeant D who advised Constable B that Mr. A's wife was being escorted from the kennels to the RCMP detachment because she had decided to leave her husband and advised that the complainant had "snuck in unauthorized" to the kennels the night before. Constable B also consulted with Sergeant D concerning keeping the complainant's unregistered firearms. While Sergeant D's role in the incident was fairly minor, the fact that he was involved at all should have raised concerns for the RCMP in terms of having him sign the Final Report on behalf of the Commissioner. His involvement raises the perception of bias and lack of impartiality in terms of Mr. A's public complaint, regardless of the fact that the public complaint investigator may have been independent.

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 Mr. A's public complaint contained a number of other allegations against members of the RCMP Police Dog Service Training Centre which were dealt with separately by that unit. A separate Commission file relates to those allegations.

2 Indeed, had there been valid grounds, Constable B would have required a warrant in order to effect the arrest of Mr. A for either of these hybrid offences given the statutory prohibition (subject to the public interest being satisfied and attendance at court) against warrantless arrests set out in subsection 495(2) of the Criminal Code.