Chair's Interim Report – Incident Related to Improper Attitude, Improper Search of Premises and Neglect of Duty
RCMP Act Paragraph 45.42(3)(a)
Vetted version for posting
January 5, 2009
Overview
On February 7, 2007, an employee of a ministry (the Ministry) contacted the Burnaby RCMP Detachment and advised of a suspected case of embezzlement at an institute (the Institute).1 A request was made for RCMP members to accompany Ministry officials to the Institute the next day to stand by and keep the peace when the officials suspended the board of directors and installed a new administrator.
Constable C and Corporal D 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 the Institute and believed to be in the possession of her mother, Ms. B.L., the Institute's bookkeeper who was away at the time. Constable C drove Ms. A.L. to the residence she shared with her mother along with one of the Ministry officials, Ms. E, an assistant deputy minister. 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 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.2
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 RCMP provided Final Reports, both dated August 6, 2008, which did not support the complainants' allegations.
Ms. A.L. was not satisfied with the RCMP's handling of her complaint, and on September 8, 2008, asked the Commission to review the matter. Ms. B.L. made a similar request on October 10, 2008. The Commission received the relevant materials from the RCMP on November 4, 2008.
For the reasons outlined below, I find that the members properly identified themselves, that Corporal D and Constable C did not merely stand by and keep the peace but assisted Ministry 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, and that Constable C had no obligation to advise Ms. A.L. of her rights.
Commission's Review of the Complaint
It is important to note that the Commission 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 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 findings, as indicated below, are based on a careful review of the following documentation: the complaints and correspondence of both Ms. A.L. and Ms. B.L., the RCMP's Operational File and Final Report, the RCMP public complaint investigator's report, the statements of Constable C, Corporal D, Ms. E and Mr. F,3 as well as other relevant documentation.
Background of Complaint
On February 7, 2007, a Ministry employee, Ms. G, contacted the Burnaby RCMP Detachment and spoke with Constable H. According to Constable H's continuation report, Ms. G provided a taped statement in which she advised that the Ministry had concerns that in excess of $500,000 had been embezzled from the Institute. She requested a police presence to stand by and keep the peace the next day when Ministry officials attended the Institute to remove the board and the president, as an Institute employee had apparently made threats in the past. Ms. G indicated that thereafter the Ministry planned to investigate the suspected fraud/embezzlement and would contact the police if further action was required.
The next day, two plainclothes Burnaby Detachment members, Corporal D and Constable C, attended the Institute. Ms. E and Mr. F fired the president and another employee4 and directed the other employees to leave and return on February 13, 2007. Ms. A.L. remained briefly to hand out the regular pay cheques to the employees.
In her complaint, Ms. A.L. indicated that she received permission to write one cheque manually but that prior to being able to do so Ms. E came into her office and grabbed the cheques from her and took control of her computer. She stated that Ms. E asked her if she could go to her mother's house to retrieve a laptop computer that her mother used for work and that it was very important. She described Ms. E as being inches from her face and that when she backed away she noticed that two men in suits, later identified as Corporal D and Constable C, were standing in the doorway. She recalled advising Ms. E that she did not know where the laptop was and could not help her.
She left her office to finish distributing cheques and to advise the employee whose cheque she had been preparing that she could not process it and that he should speak with Ms. E. Upon returning to her office, she prepared to leave and telephoned her boyfriend to let him know that she was coming home. At this point she recalled that Ms. E returned to Ms. A.L.'s office accompanied by Mr. F while Corporal D and Constable C waited outside. According to Ms. A.L., Mr. F directed her to get off of the telephone. She described the ensuing interaction in her complaint:
I was very intimidated, overwhelmed and stunned. Mr. F told me they needed the lap top, he said it was not a matter of tomorrow that they needed it and that they needed it today, they needed it now. I said I did not know where it was. F began coming closer to me and I told him that I had already told E that I could not help them. Now there was a man in a suit standing beside my desk and he told me – we can do it this way, which will be easy, or we can do it in a way that will make it much, much more difficult for you. I felt threatened they were all crowding me and questioning me in my office and none would accept, even after several times of me saying that I could not help them, they kept badgering me [emphasis added].
Ms. A.L. indicated that she felt compelled by the four people to try to locate the computer. She related that she told them she would take the bus home and search for it, to which Ms. E responded by offering her a ride. She departed with Ms. E and the two men in suits, Corporal D and Constable C. Constable C drove to the RCMP detachment where he dropped off Corporal D before proceeding on to the residence.
Ms. A.L. entered her basement apartment with Ms. E and Constable C. A search of the apartment was unsuccessful in locating the computer. Ms. E and Constable C left thereafter.
First Allegation: Members of the Burnaby RCMP Detachment failed to identify themselves.
In response to the allegation that the two members failed to identify themselves as police officers during their interactions with Ms. A.L., various statements were obtained.
Corporal D made a number of references to the issue in his statement to the public complaint investigator. He stated that he and Constable C were introduced to the president and that, "[...] in [his] opinion everybody knew [they] were policemen. [They] weren't dressed in uniform but they knew [they] were policemen and there's no second guessing it, you know police when you see them. And ah that's what happened ah [the officers] didn't per say [sic] introduce [themselves] to each individual." He later indicated that he was not introduced to Ms. A.L. but assumed that everyone knew that they were policemen.
Constable C stated that the members were introduced to the board of directors and that their stated involvement was to keep the peace. He later stated that he, Ms. E and Corporal D all advised Ms. A.L. that the members were police officers.
Ms. E recalled that the members were introduced to the president and to Ms. A.L. but did not believe that they were introduced to anyone else. She stated that Mr. F introduced Corporal D to Ms. A.L. and that she believed Constable C was introduced to Ms. A.L. before they left the Institute.
Mr. F stated that the members were visibly carrying firearms so it was "very obvious" that they were police officers. He also recalled advising the board of directors that they had a police presence and noted that some of those people were employees. He then called all staff in to the boardroom to advise them that they were all being suspended with pay. He did not, however, indicate that he made note of Corporal D and Constable C's roles nor did he recall if they were in the room at that time. He made no mention of identifying Corporal D to Ms. A.L.
For her part, Ms. A.L. recounted in her complaint that, as they were leaving the Institute, one of the members told her his name but that she could not remember it. She recalled that when she entered the van she became concerned because she did not know the identity of the men. However, she remembered the man driving the van saying that he was going to stop by the office and drop off the other man. When they stopped at the RCMP detachment she assumed that the men must be police officers. There is no record that she asked either member to identify himself.
The statements of Corporal D, Constable C, Ms. E and Mr. F in this regard vary greatly and on some points are contradictory. However, even discounting the discrepancies in the witness statements and taking into account Ms. A.L.'s evidence, I am satisfied that both Corporal D and Constable C identified themselves generally to employees at the Institute, if not to Ms. A.L. specifically. Ms. A.L. acknowledged that one member identified himself, at least by name if not rank. This was neither a case in which the members sought to conceal their identity nor one in which they were asked to identify themselves and refused. I conclude from the evidence that the members were properly identified at the outset of their involvement and I have no reason to believe that they would not have done so again, if Ms. A.L. had raised the issue.
Finding: Corporal D and Constable C properly identified themselves.
Second Allegation: Corporal D and Constable C coerced Ms. A.L. into permitting a search of her residence.
Third Allegation: Constable C conducted an unauthorized search of Ms. A.L.'s residence and permitted a civilian to assist in that search, or alternatively, that he showed bias by taking directions from the civilian.
In considering these allegations I have reviewed the complaints of both Ms. A.L. and Ms. B.L. I have also reviewed the various letters sent by Ms. A.L. to the RCMP. Some of the later correspondence contains important facts or allegations not presented in the original complaint.5 Where there is any discrepancy between these documents, I prefer the version of events found in the detailed original complaint, which Ms. A.L. stated was prepared on February 10, 2007, only two days after the events under review. From her correspondence, I conclude that her memory was affected by the passage of time and the emotional impact of the events subsequent to the search.
The Commissioner's Final Report to Ms. B.L. stated,
Cst. C did confirm he assisted A.L. in the searching of your residence. Her own statement to the Commission for Public Complaints Against the RCMP made it clear that she conducted the initial searching and Cst. C stepped in only after she advised him she could not find the laptop and then gave him permission to look as well. It is apparent to me his assisting your daughter in searching was done in order to expedite the process and help her rather than being an action of a police search.
[...]
The statements of E, F, both police officers and a review of the police operational file make it clear the police were simply present to stand-by to keep the peace. All actions were initiated by E and the Ministry. Similarly it is evident the searching of your residence was initiated by E with Cst. C there standing-by to keep the peace.
I agree that the operational file repeatedly characterizes the members' involvement as being restricted to standing by to keep the peace. However, I disagree with the Commissioner's Final Report as to whether the members restricted themselves to this task alone, as the evidence leads me to conclude that the members consciously or otherwise set out to assist the Ministry in the recovery of the laptop, which was identified by both Ms. E and Mr. F as likely holding information critical to the Ministry's investigation.
I note that the reason for the decision to have Corporal D and Constable C attend the Institute to stand by and keep the peace followed a briefing the morning of February 8, 2007 with amongst others the officer in charge of the detachment, Superintendent J. These two members were both part of the detachment's Economic Crime Unit and were chosen as the future investigative team in the event that the Ministry wished to pursue criminal charges.6 Under those circumstances, one would think it prudent that the members ensure that they acted strictly within the scope of their duties to keep the peace and not engage in facilitating the Ministry investigation.
Ms. A.L. alleged that she first felt pressured to cooperate with the Ministry officials while in her office. She attributed this to the "badgering" she felt at the hands of the Ministry officials and the RCMP members. She specifically alleged that one of the members told her when seeking her cooperation in locating the laptop computer believed to be in her mother's possession, "[...] we can do it this way, which will be easy, or we can do it in a way that will be much, much more difficult for you."
It should be noted that both Ms. E and Mr. F commented upon the general sense of confusion and stress portrayed by the employees of the Institute as a result of the Ministry's actions that day. Under these circumstances, Ms. A.L.'s stated apprehension seems quite understandable.
According to Ms. E and Mr. F, Ms. E was unsuccessful in gaining Ms. A.L.'s cooperation in attempting to locate the laptop computer. She sought Mr. F who then tried to elicit Ms. A.L.'s assistance. Finally, Corporal D indicates that he successfully intervened and as a result of his comments, Ms. A.L. agreed to try and locate the laptop computer. These actions were part of Corporal D's duties in keeping the peace.
Corporal D's occurrence report indicated,
It was also discovered that the book keeper [Ms. B.L.] still had in her possession a lap top computer believed to have all the data for the numbered companies of [the president] and who the cheques were written too. [Ms. A.L.] was hesitated in cooperating suggesting she did not know where the lap top was. In fact, her mother (book keeper) was on holidays and it was asked if she would take E to collect the lap top. It took D to talk to her to point out that this was an active investigation and that her cooperation would be appreciated that she took E and C to look for the lap top [sic throughout, emphasis added].
In his statement to the public complaint investigator, Corporal D was asked whether he remembered anyone telling Ms. A.L. words to the effect of "[...] we can do this the hard way or the easy way." He responded,
You know I don't recall that but I may have said that but I probably said that with ah in reference to [Ms. E], we probably had our own private conversation. She could have overheard it. Ah, my thing on that is that I did talk to her and I, I told her that you know what? It's probably in your best interest to help or to, this is an ongoing investigation it's probably in your best interest to, to help [emphasis added].
Ms. A.L. repeatedly indicated that she did not wish to assist the Ministry in searching for the laptop computer and that she wished to leave. She was under no obligation to assist the Ministry investigation and she should have been free to depart when she wished to do so. Even if Corporal D directed his comments to Ms. E in relation to having to do things the "hard way," it still demonstrated a desire to aid in the recovery of an object that had been identified as critical to the Ministry investigation and any future criminal investigation.
This is further corroborated by Corporal D's admission that he suggested to Ms. A.L. that it would be in her best interests to cooperate because of the ongoing investigation. This statement was ambiguous in that it did not qualify whether it was a Ministry or criminal investigation. Given that this was said by a police officer, it could reasonably have given the impression that the police were engaged in an investigation and were seeking cooperation in that process. In fact, when asked about whether the police presence was solely for the purpose of standing by to keep the peace, Mr. F stated that it was for that purpose "[...] with the exception that I think we did note that there was a computer that we were very much interested in that, that we knew was not there and ah, ah that we were looking for so to speak."
Ms. A.L. acknowledged being offered a ride to her apartment so that she could look for the laptop.
Corporal D stated that Constable C accompanied Ms. A.L. because Ms. E was not sure what she would be getting into at the house. However, Ms. E indicated that she was asked by Corporal D to accompany Constable C in order to have another woman present while Ms. A.L. was driven home to search for the computer. Corporal D was dropped off at the detachment en route to Ms. A.L.'s apartment. Upon their arrival, Constable C and then Ms. E followed Ms. A.L. into the apartment. According to Ms. A.L. she did not invite either individual into her home. Both Ms. E and Constable C indicated that Ms. A.L. did not object to their presence.
Constable C related the following,
We went down to the, the residence and [Ms. A.L.], we just said we would like to have a look for it, but we're not going to do a search of the home per say [sic]. Um, we'd just like to see if it's, if it's out in plain view and if you could look in some like (inaudible). So [Ms. E] came in and she actually [...] declined to actually take an active part. I remember her just staying in the foyer area of the house. Um, I went through with [Ms. A.L.] and looked in, at things like (inaudible), just each room to see if the computer was lying about in, in her bedroom, in her common room, dining room. [...] We didn't look in any closets or cupboards [...] [emphasis added].
When asked to qualify this later he indicated that he was not sure and may have opened a drawer.
Based upon the evidence before me, I find that the members' actions went beyond standing by to keep the peace. If they were engaged only in this duty then their service would not have been needed once Ms. A.L. indicated that she did not know where the laptop was had she been allowed to leave. Instead, after failed attempts by Ministry staff to locate the laptop, Corporal D interceded. Then Constable C attended Ms. A.L.'s apartment ostensibly to keep the peace. If that was his sole purpose, there would have been no need for either him or Ms. E to leave the vehicle or proceed beyond the door of the residence.
I find that Constable C actively participated in a search for the laptop. I do not agree with the Commissioner's Final Report in characterizing his actions as providing assistance to Ms. A.L. so as to "expedite the process". The search was not a time consuming one and both Ms. E and Constable C indicated that they were not in the apartment for very long. By his own words, it is clear that Constable C wanted to see for himself if the laptop was there. Furthermore, the assistance being given was to the Ministry in furtherance of its investigation, an investigation that Constable C had reason to believe would have a criminal component in which he would be involved. For that very reason, the members needed to act prudently so as not to give the impression that they were favouring the Ministry's interests over those of Mmes. A.L. and B.L. That is exactly what was complained of by Mmes. A.L. and B.L. As the Commission has noted in the past regarding sensitive matters such as those at hand, members must be ever vigilant to ensure that they respond appropriately, given the circumstances of the particular case.
Finding: Corporal D and Constable C did not merely stand by and keep the peace but assisted Ministry 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.
Recommendation: I recommend that a senior member of the RCMP review with Corporal D and Constable C the circumstances giving rise to Ms. A.L.'s and Ms. B.L.'s complaints.
Fourth Allegation: Constable C failed to advise Ms. A.L. of her rights.
At the time of the search of her residence, Ms. A.L. was not the target of a criminal investigation by either the Ministry or the RCMP. Accordingly, there was no obligation on the part of Constable C to advise her of her rights at that time.
Finding: Constable C had no obligation to advise Ms. A.L. of her rights.
Pursuant to paragraph 45.42(3)(a) of the RCMP Act, I respectfully submit my Interim Report.
_____________________
Paul E. Kennedy
Chair
1 According to publicly available documents, the Institute formally commenced operations in 1995 as a publicly funded post-secondary educational institution and in 2007 became part of another institute.
2 For the purposes of this report I have joined the two complaints, which are similar in nature and involve essentially the same subject matter.
3 According to a Government of British Columbia news release, Mr. F was appointed by order-in-council as the public administrator of the Institute and replaced the board of governors.
4 These were the individuals whom the Ministry was investigating.
5 For example, in a letter addressed to Deputy Commissioner Gary Bass (the Commanding Officer of "E" Division), dated July 6, 2007, Ms. A.L. alleged that before leaving her office several police officers were yelling at her. This would seem to be an important point that was not referred to at all in the original complaint. Additionally, Ms. A.L. asserted in the letter that Ms. E searched through her mother's closet and personal belongings, while in her complaint she indicated that Ms. E remained at the bedroom door.
6 According to Mr. F, he conveyed that decision to Corporal D that evening after having taken charge of the Institute.