Chair's Interim Report – Incident Related to Excessive Use of Force

RCMP Act Paragraph 45.42(3)(a)

Vetted version for posting

January 30, 2009

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Overview

On the evening of November 16, 2006, four members of the La Loche RCMP Detachment in Saskatchewan received information that the complainant, Mr. A, was drinking at a local bar. Mr. A was wanted for assault causing bodily harm with respect to an incident with his former girlfriend during the previous week. Constables B, C and D and Corporal E attended the bar where they located Mr. A and advised him he was under arrest. A struggle ensued between all four members and Mr. A. He was eventually handcuffed and escorted to the police vehicle outside. Mr. A was then transported to the La Loche Detachment and at approximately 10:17  p.m., he was lodged in cells.

Upon entering the cell with the four members, Mr. A was placed on his stomach and while still handcuffed, he was searched and his outer clothes and shoes were removed. Mr. A was then left in the cells. Approximately one hour later, Mr. A attempted to choke himself with a piece of cloth that he had torn from his shirt. The members re-entered the cell, cut the piece of cloth from Mr. A's neck and removed all his clothing. A short time later, Mr. A was observed hitting his head on the toilet seat in the cell. Mr. A was then placed in a restraint chair for over two hours.

On November 20, 2006, Mr. A pled guilty to break and enter, uttering threats (in relation to the November 8, 2006 incident), resisting arrest and assaulting a peace officer (in relation to his arrest on November 16, 2006) and was sentenced to three years in jail.

On June 22, 2007, the Federation of Saskatchewan Indian Nations lodged a complaint with the RCMP on Mr. A's behalf alleging that the four members used excessive force when arresting him and in the cell block area to keep him under control. In his complaint, Mr. A alleges that the conducted energy weapon¹ (CEW) was used on him twice during his arrest and that when he was placed in cells, the members beat him and used the CEW on him three more times while he was still handcuffed.

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 March 25, 2008 did not support the complainant's allegations.

The Commission received Mr. A's request for review on October 3, 2008. The Commission received the materials relating to this review from the RCMP on October 15, 2008. The Commission requested additional information on November 4, 2008 and on December 10, 2008. In response to these requests, the Commission received information pertinent to this file on December 3, 2008, January 13, 2009 and January 15, 2009.

For the reasons outlined below, the evidence leads me to conclude that it was reasonable to apply the CEW to Mr. A during his arrest in the bar and when he was being placed in the police vehicle. I also find that there is inconclusive evidence to support Mr. A's allegation that the CEW was used on him when he was lodged in the cells. With respect to the use of the restraint chair, I find that its initial use was reasonable; however, the length of time Mr. A was kept in the chair was excessive and not in compliance with RCMP policy. I will also provide comments on what I believe to be an inadequate public complaint investigation.

Commission's Review of the Complaint

It is important to note that the Commission for Public Complaints Against the RCMP (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 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.

Having now reviewed Mr. A's complaint and the RCMP's Final Report, I have prepared this report, which contains my findings with respect to the complaint. A detailed and very careful examination has been undertaken of all the relevant materials related to this file. This has included a review of the statements of Corporal E, Constable C, Constable D, the complainant, Mr. F² and Mr. G,³ various Occurrence Reports and Supplementary Occurrence Reports, the Prosecutor's Information Sheet, the RCMP's investigation report, the cell block video, Mr. A's criminal record, police notebook entries of Constable B and Constable D, the CEW Usage Reports completed by Corporal E and Constable B and other relevant material including applicable legislation and RCMP policies.

Allegation: Corporal E and Constables B, C and D used excessive force when arresting Mr. A from a bar in La Loche and used excessive force in the La Loche RCMP cell block area to keep him under control.

Facts

At approximately 10:00 p.m. on November 16, 2006, the La Loche RCMP Detachment received information that Mr. A was drinking at a local bar. Corporal E and Constables B, C and D attended the bar and located Mr. A sitting at a table drinking. Constable B and Constable C then approached Mr. A, grabbed his arms and advised him he was under arrest.

A) Statement of Mr. A taken on August 18, 2007

During the public complaint investigation, Mr. A provided a statement in which he recounted that while he was sitting at the table, he was pushed from behind and someone (the arresting members) grabbed his right arm. He stated he pushed back, got up and swung his arm. Mr. A stated that when the members tried to arrest him, he grabbed one of the members and the other three members took him to the ground. Mr. A stated that when he was on the ground, he resisted being handcuffed by holding his arms together under his chest. He related that he was tasered two times. The members eventually handcuffed him and took him to the police vehicle outside. Mr. A recalled that he kicked a member in the chest when they were trying to put him in the vehicle.

In his statement, Mr. A did not claim that the members beat him up at the detachment as alleged in his complaint. He stated that when he was in the cell, he tried to kill himself by ripping his shirt and wrapping the piece of cloth around his neck. He passed out and when he woke, the members were taking his clothes off. Mr. A stated that he was then tasered three times, as he was resisting because he did not want his clothes taken off. He was then put into a restraint chair. Upon questioning, Mr. A stated that he did not recall doing anything else to himself prior to being placed in the restraint chair. Mr. A indicated that he had been drinking and had taken cocaine on the day of his arrest.

B) Constable D's Occurrence Report and Statement taken on August 16, 2007

In a Supplementary Occurrence Report completed by Constable D at the time of the incident, he estimated that there were approximately 20 to 25 people in the bar when Mr. A was arrested. Constable D indicated that Constable B and Constable C initially approached Mr. A and advised him he was under arrest. Mr. A stood up and began to struggle with them by pulling from side to side. Constable D stated that he put his arm around Mr. A's neck and was going to use the "koga neck restraint" but decided not to. Constable D related that the members attempted to place Mr. A on the ground but it was difficult due to furniture in the way. As the struggle ensued, Constable C kneed Mr. A in the stomach but Mr. A continued to ignore commands to get on the ground. Constable D reported that at this point there was a crowd gathering around the members in the bar. The crowd was jeering and making comments at police and one of the bouncers was assisting the members by pushing the crowd back.

Constable D stated that he reached down and pulled Mr. A's legs out from under him. Mr. A was told to lie down and stop resisting numerous times, but he refused to listen. Constable D stated that he then pulled Mr. A's legs out straight as he was attempting to curl up into a ball to prevent the members from handcuffing him. Constable D recounted that at this point, Constable B tasered Mr. A in the hip region but it seemed to have no effect. Mr. A continued to struggle with the members and managed to roll onto his back despite the four members attempting to control him. At one point, Constable D noticed that Mr. A had a hold of Constable C's left hand and was trying to twist it. The members eventually placed the handcuffs on Mr. A, on the front rather than the back, and he was escorted out of the bar to the police vehicle.

When they were outside, Constable D reported that Mr. A began to struggle and resist again by twisting from side to side to try to get away. Constable D says he unlocked the truck, opened the driver side door and then went to the passenger side door to pull Mr. A into the truck, as he was struggling and not getting into the vehicle. Constable D stated that at this point he heard the "taser cracking again but this had no effect." He then got in the back of the vehicle and pulled Mr. A in as the other three members pushed him in. Constable D indicated that as he was pulling Mr. A into the truck, Mr. A kicked Constable C in the upper chest area. The members then shut the door and left the bar parking lot.

At the detachment, Constable D reported that the members escorted Mr. A into Drunk Tank 1. Mr. A was told to lie down on his stomach and after a short time he did so. His winter clothing and shoes were removed and he was searched. Constable D noted that he was using a wrist lock to control Mr. A's arm while he was being searched. Constable D noted that Mr. A's wrist was red and the skin was broken where the handcuffs had been. Mr. A was then left in the cell.

A short time later the cell block guard advised the members that Mr. A had torn a piece of his sweater into a thin strip and had tied it around his neck. Constable D stated that the members entered the cell and Mr. A's head and face were turning red from lack of circulation. Constable B cut off the piece of cloth and then the rest of Mr. A's clothing was removed and he was left in the cell. A few minutes later, the guard notified the members that Mr. A was slamming his head against the toilet. Constable D reported that the members "[...] decided that for his safety [Mr. A] would be placed in the restraint chair." Constable D stated that the four members placed Mr. A in the chair without incident and at 11:44 p.m., Mr. A was placed back in the cell.

Constable D indicated that Mr. A slammed himself around in the chair, bouncing the chair around in the cell for approximately the first 30 minutes. At 1:40 a.m., Constable D stated that he and Constable C entered the cell to check on Mr. A and Mr. A "seemed to have calmed down a bit." At that time, Mr. A told the two members that he had smoked about one gram of cocaine and had injected an unknown amount of cocaine. Mr. A was removed from the chair at 2:20 a.m.

Constable D's police notebook entries and his statement to the public complaint investigator were consistent with his Supplementary Occurrence Report. However, in his statement, Constable D provided more detail regarding the atmosphere of the crowd in the bar during Mr. A's arrest. He related:

When Cst. C kneed A in the stomach this seemed to ignite the crowd in the Bar. I was close to Cst. C and told him "C, No." At this point there was a crowd gathering around Police in the bar. Cst. C made a good decision in using hard hand control as soft hand was not working and other options would not have been practical. However, I was very concerned that if the crowd witnessed more hard hand control techniques that the crowd would turn on Police. The crowd was jeering comments at Police such as, "If you kill him I'm a witness, that is abuse, you don't have to do that." There were numerous comments to that affect [sic]. One of the bouncers, G, was assisting Police by trying to keep the crowd back from police. G physically pushed some people away from Police. The crowd was getting angry. I was concerned that if Mr. A was not handcuffed quickly and escorted out of the Bar that the situation would become very bad for myself and the other officers.

I have dealt with situations in the past where someone who is combative has to be arrested in front of a crowd in La Loche. It is my experience that these situations can be very dangerous. I was afraid that the crowd at the Bar would turn on Police and someone would try to help Mr. A. There were numerous items that Bar patrons could have been [sic] used as weapons against Police, such as, chairs, tables, bottles, cans, etc.

C) Constable B's Supplementary Occurrence Report and CEW Usage Report completed on December 22, 2008

Constable B did not wish to provide a statement to the public complaint investigator, as she had completed a Supplementary Occurrence Report on the night of the incident detailing the arrest of Mr. A and the incident in the cell block area. In her report, Constable B indicated that Mr. A was known to be violent and had resisted members the last time he was arrested. She stated that she and Constable C initially approached Mr. A in the bar and she advised Mr. A that he was under arrest. Both she and Constable C grabbed Mr. A's arms and she told him to put his hands behind his back but Mr. A did not comply. Constable B stated that Mr. A resisted arrest by pulling away and he was then pushed to the ground. Mr. A was holding his hands in front of him when the members were trying to handcuff him and would not respond to commands to stop resisting arrest. Constable B stated that she was wearing the CEW and deployed it in stun mode⁴ to Mr. A's lower back to try and gain control of him but it seemed to have no effect. At this point, Mr. A started to kick his legs and Corporal E grabbed the CEW from her and applied it to Mr. A again. After about two minutes of struggling, Mr. A was handcuffed.

Constable B recounted that Mr. A would not get off the ground and use his feet to walk so the members dragged him across part of the bar. Mr. A eventually began to walk and was taken to the police vehicle. He began to resist the members again by pulling away. As a result, Corporal E deployed the CEW briefly on Mr. A's lower back. Constable B related that Constable D went to the passenger side of the vehicle and pulled Mr. A's body across the seat while she and Constable C pushed his body across from the driver's side. As Constable C was closing the door, Mr. A kicked him in the chest.

Constable B stated that Constable D drove the police vehicle down the street and pulled over while she advised Mr. A of his Charter rights and read the police warning. Constable B explained that the vehicle was driven down the street because in the past members had bottles thrown at them and the police vehicle while parked outside the bar and she therefore thought it was necessary to leave the bar area to prevent any injury to the members and/or any bar patrons.

At the detachment, Constable B reported that before Mr. A was taken out of the police vehicle, he was advised that he would be tasered if he resisted members again. Mr. A was then escorted into Drunk Tank 1 by Constable C and Constable D and was placed on the ground. Constable B stated that Mr. A was still not cooperating and Constables D and C restrained his upper body while she and Corporal E assisted with taking Mr. A's clothes off and searching him.

Constable B indicated that at 10:30 p.m., she was in the office when the cell block guard advised her that Mr. A was tying something around his neck. All four members went into the cell and observed Mr. A sitting against the wall with a piece of his shirt tightly wrapped around his neck. He was placed on his stomach and Constable B cut the piece of shirt off his neck with a multi-tool. Constable B stated that at this point, the rest of Mr. A's clothing was removed and he was left on the cell floor, as he was breathing fine.

Shortly thereafter, Constable B and the other three members returned to the working area of the detachment and Mr. A was heard yelling. The members monitored Mr. A on the camera monitor and he was seen kneeling beside the toilet and had his head resting on the edge of the toilet seat. Constable B noted that it appeared to her that he was lining up his head on the toilet to hit it off the rim and she observed Mr. A hit his head off the toilet one time. She stated that while she was watching from the door, she advised Mr. A if he continued to do this he would be tasered.

Constable B reported that the members decided to use the restraint chair due to the threat of Mr. A causing injury to himself and becoming more of a risk to the members by cutting himself open and bleeding from his head. Constable B stated that Mr. A was placed in the restraint chair without incident. He was then placed back in the cell with a blanket over his exposed groin region. He was rocking back and forth in the chair which caused the chair to move around. Constable B related:

[...] In policy when using the restraint chair the subject is to be re-assessed after 2 hours to see if it is appropirate [sic] to release him from the chair. [At 1:45 a.m., Mr. A] was still on occassion [sic] trying to bounce around in his chair and was believed to be still a risk to himself. [Mr. A] still appeared to be quite high on some type of drug and it was decided to re-assess the situation in a bit.

Constable B stated that Mr. A was released from the chair at 2:20 a.m. because he had to use the bathroom and was cooperative at this point. Mr. A was left in the cell with no clothes and a suicide blanket.

Although completed in excess of two years after the incident, Constable B's CEW Usage Report is consistent in all material respects to her Supplementary Occurrence Report.

D) Statement of Constable C taken on July 9, 2007

In his statement, Constable C recounted that when he and Constable B told Mr. A he was under arrest, Mr. A stated "fuck that" and the members grabbed his arms. Constable C stated that Mr. A "was already resistant and then immediately combative." Constable C indicated that Mr. A pulled his left arm free and had formed a fist as he turned toward him, and as a result of feeling threatened, he kneed Mr. A in the torso. Constable C described Mr. A's behaviour as "so combative" that it took four of the members to take him to the ground. During the struggle that ensued, Constable C related that Mr. A tried to crush his fingers by collapsing the handcuffs around them. Constable C stated he then placed his knee on Mr. A's throat and managed to get his fingers out of the handcuff when he heard "the taser cycle several times;" however, Mr. A was completely non-responsive to any type of pain compliance. Constable C described the crowd as "belligerent" and stated that he was worried that one of Mr. A's friends would attack his exposed back. The members eventually handcuffed Mr. A in the front of his body.

When the members led Mr. A out of the bar, Constable C indicated that Mr. A was "still trying to fight by kicking." Constable C stated that he tried to use a "neck crank" on Mr. A for pain compliance but it was ineffective. He stated that it took three members to get Mr. A into the police vehicle and as he was going into the vehicle, Mr. A kicked Constable C in the chest. Unlike the other three members, Constable C did not mention that the CEW was applied to Mr. A at this time.

Constable C stated that back at the detachment, Mr. A was put into the prone position when he was placed in the cell. Constable C indicated that Mr. A continued to be "combative" and pain compliance was again used. He then recalled that a short time later, the members were called back to the cell block, as Mr. A was trying to choke himself. Constable C stated that Mr. A was "nearly unconscious" and at this point, the members removed the cloth from his neck and the rest of Mr. A's clothing.

Constable C recounted that the members were called back to the cell for a third time as Mr. A was "ramming his head off the stainless steel toilet bowl" and verbalizing that he wanted to die. Constable C then stated:

The accused was then restrained in the restraint chair. The accused vibrated and shook himself so hard that he bent the restraint chair and manage [sic] to shimmy it across the cell floor to the far wall in a [sic] attempt to bang his head against the wall. Members entered the cell again and placed the accused in the middle of the cell flooragain [sic]. As best I remember, the accused was in the chair for about an hour to an hour and a half.

Constable C indicated that several hours after the incident, he spoke with Mr. A who stated that he had "shot" over a gram of cocaine and smoked several grams of crack cocaine.

E) Corporal E's Statement taken on July 20, 2007 and her CEW Usage Report completed on December 17, 2008

Corporal E's description of the struggle that ensued when Mr. A was being handcuffed is similar to the other members with additional details of her role in the arrest. For instance, Corporal E stated that when the members were struggling with Mr. A on the ground, she used pain compliance by pressing behind his left ear and applying an eye gouge to his left eye. Also, at one point during the struggle, she used a head lock and grabbed Mr. A's left hand and pulled back his fingers to place on one handcuff. Corporal E provided the following details:

The fight with him seemed to be going on forever. You could feel the crowd getting upset and they were starting to yell things at us. So I attempted more pain compliance as his legs were moving under my body weight [.] I grabbed between his legs grabbing his genital area and basically squeezed and pulled hard but there was no response from [Mr.] A. Cst. B [sic] right leg was in front of me and I saw she was wearing a taser. So I grabbed the taser, placed it on his butt picking the largest muscle area available and stunned him for a good 5 seconds.

In her statement, Corporal E related that as they were escorting Mr. A to the police vehicle, he continued to resist by dropping his body weight, forcing the members to drag him to the vehicle. Corporal E stated that she warned Mr. A that if he continued to resist, he would be tasered again. She stated that as the other three members put Mr. A in the back of the police vehicle, he kicked Constable C and she deployed the CEW on Mr. A's back for approximately three seconds.

Back at the detachment, Corporal E recounted that Mr. A was shown the CEW and advised that if he did not cooperate he would be tasered again. Mr. A was escorted into the cell and told to lie on his stomach. While Constable D and Constable C controlled Mr. A with arm and wrist locks, she and Constable B searched him and removed his excess clothing. Corporal E stated that Mr. A continued to stiffen up and pull away during this process and the CEW was applied to his lower back for two to three seconds. After the removal of Mr. A's winter clothing, the four members exited the cell.

Corporal E recounted that a short while later the members were told that Mr. A had wrapped something around his neck. All four members entered the cell and Constable B cut the piece of cloth off Mr. A's neck. His clothing was stripped and he was left in the cell. A few minutes later, the cell block guard called the members back, as Mr. A was hitting his head on the toilet. Corporal E related that the members watched Mr. A on the monitor and could see him leaning his head on the toilet and then sitting up as if he were lining it up to smash his head off the toilet. The members decided to use the restraint chair. The cell door was opened and Corporal E stated that the CEW was pointed at Mr. A and he was warned that if he did not cooperate he would be tasered. Mr. A was then secured in the restraint chair and placed in the center of the cell and covered with a suicide blanket. Corporal E then stated:

The guard was instructed to monitor him closely and then we continued to pop back in to the cell block to see how he was doing. He would go between being calm to yelling, upset and physically able to bounce that chair and himself in the chair. I think at one point he was able to bounce himself right up to the wall. And tried to hit his head on the back of the wall. We actually had to go back in and move the chair back to the center of the cell. This continued for approximately two hours. This continued for approximately two hours.

After two hours, Mr. A began asking to be let out of the chair, as he had to use the washroom and was told if he calmed down he would be removed from the chair. Corporal E recalled that within 30 minutes, Mr. A was taken out of the chair and placed back in the cell with a suicide blanket.

The CEW Usage Report completed by Corporal E is significantly different from her initial statement. In her statement, Corporal E recounted that she deployed the CEW three times, once in the bar, once by the police vehicle after Mr. A kicked Constable C and once when Mr. A was lodged in the cell. In her CEW Usage Report, Corporal E stated that the CEW was used on Mr. A four times.

Corporal E reported that while the members were struggling with Mr. A on the ground, Constable B deployed the CEW on Mr. A in stun mode to try and gain control of him but it did not seem to work. Corporal E stated that Mr. A continued to resist and after attempting pain compliance to his groin area with no effect, she applied the CEW for five seconds to Mr. A's lower back followed by another five second burst but with no response. The next time Corporal E indicated that she used the CEW was when the members were attempting to place Mr. A in the police vehicle. She stated that Constable C and Constable B were on either side of Mr. A and he was resisting by moving from side to side. Corporal E indicated that she was behind Mr. A and removed the CEW from Constable B's holster and applied it to his back from five seconds. Corporal E stated that they were then able to place Mr. A in the police vehicle. Contrary to her statement, Corporal E in this report does not mention that she applied the CEW to Mr. A when he was lodged in the cell back at the detachment.

F) Statement of Mr. F taken on August 6, 2007

In his statement, Mr. F recalled that it was shortly before midnight and Mr. A was sleeping in the cell and woke up. Mr. A then "hit his head twice on the toilet bowl." Mr. F stated that he told the members and when they saw what Mr. A was doing, they went into the cell and placed him in the restraint chair. He indicated that his shift was then over and he left.

When questioned about what happened when Mr. A was placed in the cells, Mr. F indicated that the members brought Mr. A in at about 10:00 p.m. but he forgot to write down what happened. He stated that he was in the bathroom when Mr. A was first placed in the cells and did not know who brought Mr. A into the cells at that time.

G) Statement of Mr. G taken on September 19, 2007

Mr. G recounted that he had just arrived at the bar when he saw Mr. A lying on the floor face down with one handcuff on and Constable C was putting on the second cuff. He stated that there were people behind the members, yelling and swearing at them. Mr. A was resisting with his free hand and the members were having trouble putting on the second cuff. Mr. G stated that he told the crowd gathered behind the members "to back off or they will be going too." The members then handcuffed Mr. A and escorted him out of the lounge. Mr. G indicated that he did not see the members using excessive force.

Analysis

While there are consistencies as to some elements of the various statements, there are also marked disparities, particularly in relation to the number of times the CEW was used on Mr. A. For the purposes of this review and in an attempt to clarify the inconsistencies with respect to this incident, the Commission requested pertinent information that was not obtained by the RCMP during the public complaint investigation. This included the members' police notebook entries with respect to the arrest and lodging in cells of Mr. A, Form 3996 (CEW Usage Report), and the CEW activity log to confirm the number of times the CEW was discharged during this incident.

In fact, RCMP policy at the time of this incident required:

5.1. Each time the CEW is used, record on the investigative file, as well as your notebook, the time, date and location; if the CEW was in stun or probe mode; a description of the circumstances; and whether the CEW Challenge was given.

5.2. Complete form 3996 within 15 days every time the CEW is used.

5.3. Record on the investigative file any apparent or alleged injuries or medical afflictions caused by the CEW.

RCMP policy also dictated that the commander was responsible for maintaining a control log for each CEW assigned to the unit by recording the time, date and name of each member who signs out the CEW.

In this case, a CEW Usage Report was not completed as required by policy. In response to the Commission's request, the RCMP provided a CEW Usage Report, which was completed by Corporal E and Constable B in December 2008. In my view, this CEW Usage Report is of little value given that it was completed over two years after the incident. In my view, after this significant period of time, the members' recollection is likely to be diminished. Indeed, this point is underscored by the fact that Corporal E's CEW Usage Report differs substantially from her statement in many material respects.

With respect to the members' notes, the Commission received the police notebook entries of Constable B and Constable D. Constable D's notes were detailed and consistent with his Supplementary Occurrence Report and his later statement. Constable B's notebook entry consisted of a few lines that stated to see her Supplementary Occurrence Report for notes, as she had completed this report immediately after Mr. A's attempted suicide. Although her report is detailed and is of some assistance, this did not comply with the first requirement of the policy. Corporal E's notes were not provided as apparently they were in storage and not available for the purposes of this review. Furthermore, considering the serious nature of the events which unfolded regarding Mr. A, I would have expected that all members involved would have kept detailed notes of their respective roles and observations.

Finally, although the CEW activity logs for the three CEWs that were identified as being in the La Loche Detachment on November 16, 2006 were provided, a control log for the CEWs recording the time, date and name of the member who signed out the CEW was not maintained at the detachment. Therefore, the activity log is of little evidentiary value given that it cannot be determined which CEW was used on Mr. A.

I also note that even if it could be determined which CEW was used on Mr. A, the information contained in the activity logs is insufficient to allow a determination as to the exact time that the CEW was discharged. A review of the activity log for one of the CEWs shows that this CEW was discharged six times on November 17, 2006 between 3:37 and 3:52 a.m. and states that the "Time Difference is 2 hrs and 12 minutes between Taser Time and Actual Time." However, it does not specify whether the time difference is ahead or behind the "actual time" or specify what time zone "actual time" refers to. Therefore, it cannot be determined whether any of these discharges occurred at the time Mr. A was arrested or lodged in cells. The activity log for the second CEW does not show any discharges on the relevant date; however, in the event that it was discharged on the relevant date, this activity log states that the "Time Difference is Unknown between the Taser time and Actual Time," thus it would be impossible to verify the exact time that it was discharged. Finally, the data from the third CEW was corrupted due to leaking batteries.

It is clear that in this case, the reporting of CEW usage fell far well short of that required by policy. Appropriate reporting would have assisted greatly in answering many questions arising out of this incident and the failure to comply with these required tasks had a direct impact on the various aspects of this review. As a result, the facts related to this incident must be derived from the statements provided during the RCMP investigation.

In this regard and as noted above, there are significant discrepancies in the evidence regarding the number of times the CEW was used on Mr. A. Mr. A alleged that the members used the CEW on him a total of five times during the period in question (twice during his arrest and three times in the cell).

Constable B stated that she was wearing the CEW and both she and Corporal E deployed the CEW in touch stun mode to Mr. A when the members were struggling with Mr. A on the ground in the bar. Constable B indicated that the CEW was applied to Mr. A for a third time by Corporal E when he was taken out to the police vehicle.

Constable D recounted that the CEW was used on Mr. A two times. He stated that Constable B deployed the CEW on Mr. A while they were struggling with him on the ground and he "heard the CEW cracking again" when he went to the passenger side of the police vehicle to attempt to pull Mr. A in, as he was refusing to enter the vehicle.

In his statement, Constable C recalled that when the members were on the ground in the bar trying to gain control of Mr. A's arms, he heard "the taser cycle several times." Unlike the other members, Constable C did not mention that the CEW was used on Mr. A when they were attempting to put him into the police vehicle.

In her statement, Corporal E recalled that the CEW was used on Mr. A three times on the night of his arrest. Corporal E stated that when the members were attempting to handcuff Mr. A in the bar, she saw that Constable B was wearing the CEW and she grabbed it from Constable B's holster and "stunned him for a good five seconds." Corporal E indicated that she applied the CEW to Mr. A a second time when he was refusing to enter the police vehicle. Corporal E is the only member who stated that the CEW was used on Mr. A when he was being searched in the cell.

In Corporal E's CEW Usage Report, however, she recounted that the CEW was used four times on Mr. A. In this report, she recalled that Constable B initially deployed the CEW in stun mode and that as they continued to struggle with Mr. A in the bar, she removed the CEW from Constable B's holster and applied it to Mr. A's lower back for two five-second bursts. Corporal E recounted that the fourth time the CEW was used on Mr. A was when they were attempting to put him into the police vehicle. Contrary to her initial statement, Corporal E did not state in this report that she applied the CEW to Mr. A while he was being searched in the cell.

Based on my review of the investigation documents, I find, on a balance of probabilities, that Constable B was wearing the CEW and the CEW was applied to Mr. A twice during his arrest; once by Constable B and once by Corporal E. In his complaint and subsequent statement, Mr. A alleged that the CEW was used on him twice during his arrest. I afford little weight to Mr. A's version of events given that he admitted to medical personnel that he could not recall what happened on the night of his arrest. However, his allegations in this regard are corroborated by the statements of the members.

In her Supplementary Occurrence Report, Constable B stated that both she and Corporal E discharged the CEW on Mr. A while they were attempting to gain control of him in the bar. Constable D also stated that Constable B used the CEW on Mr. A during his arrest. In her initial statement to the public complaint investigator, Corporal E indicated that she used the CEW once on Mr. A in the bar. Although Corporal E related in her subsequent CEW Usage Report that she discharged the CEW on Mr. A for two consecutive five second bursts during the struggle in the bar, I afford greater weight to the evidence provided by Corporal E in her statement, as it was given seven months after the incident whereas the CEW Usage Report was completed over two years after the incident.

I also find that there is sufficient evidence to conclude on a balance of probabilities that Corporal E applied the CEW to Mr. A at the police vehicle which was parked nearby. Although Mr. A did not allege that the CEW was used on him at this time, three of the members, namely Corporal E, Constable B and Constable D were consistent in their statements that the CEW was used on Mr. A outside the police vehicle. Corporal E and Constable B stated that Corporal E was standing behind Mr. A and took the CEW from Constable B's holster and deployed it on Mr. A. Although he does not identify the member who discharged the CEW, the fact that the CEW was deployed outside the police vehicle is supported by Constable D's statement that when he went to the passenger side of the police vehicle he heard the "taser cracking again."

With respect to Mr. A's allegations that he was subjected to the CEW three times when he was in the cell, I find that the evidence is inconclusive in this regard. As noted above, I afford little weight to Mr. A's evidence given his poor recollection of what transpired during his arrest. Although Corporal E provided evidence in her initial statement to the public complaint investigator that she discharged the CEW, for approximately two seconds, on Mr. A while he was being searched in the cell, the other three members did not mention the use of the CEW in the cell. Furthermore, I have carefully reviewed the cell video in its totality and it does not appear that Corporal E, or any other member, used a CEW on Mr. A in the cell. Although it is puzzling as to why Corporal E would state that she used the CEW on Mr. A in the cell if she in fact did not, given the lack of corroborating evidence from the other three members as well as the cell video in this regard, I find that there is insufficient evidence to establish that the CEW was used on Mr. A while he was lodged in cells.

Having found that the CEW was used on Mr. A three times on the night of his arrest, I will now turn to an analysis of whether the use of the CEW was a reasonable and appropriate use of force in the circumstances.

Policy Regarding the Use of the CEW

The proper use of the CEW by members of the RCMP is governed by a variety of legislative, policy and training protocols. The Criminal Code of Canada⁵justifies action taken by peace officers in doing anything that they are required or authorized to do in the administration or enforcement of the law, as long as they act on reasonable grounds and use only as much force as is necessary for that purpose.

RCMP policy at the time of this incident required that before deploying the CEW a member should:

1. Consider other possible intervention options.
   
2. Whenever possible, identify yourself as a peace officer.
   
3. Whenever possible, give the CEW challenge, "Stop or you will be hit with 50,000 volts of electricity!"

It also stated that the deployment of the CEW must be in accordance with the principles of the Incident Management/Intervention Model (IM/IM).⁶ From their earliest days of training as cadets, members are exposed to the IM/IM. This model is designed to aid members formulate appropriate intervention responses by considering a host of factors that may be relevant in the varied interactions carried on between the police and the public on a daily basis.

The central element of the IM/IM is the CAPRA problem-solving model.⁷ The model requires members to consider all relevant situational factors⁸ when determining whether and if to use force, and the necessary amount of force to use under the circumstances. These factors are the basis upon which a member will make the assessments called for in the IM/IM. Members are required to assess the risk posed by a subject, followed by a determination of the appropriate level of response, which may include use of force.

The CEW is currently classified as an "intermediate device". Weapons in this category may be used against subjects who exhibit high-end resistance. The IM/IM describes resistant behaviour as, "The person demonstrates resistance to control by the police officer through behaviours such as pulling away, pushing away or running away."

CEW Deployment and Other Physical Force During Mr. A's Arrest

Turning to the facts, I find it undisputed that the members attended the bar to arrest Mr. A for assaulting his former girlfriend. Mr. A was known by the members to be violent and to have resisted arrest in the past. When the members arrived at the bar, there were approximately 20 to 25 people inside. Mr. A was located sitting at a table and Constable C and Constable B approached him, grabbed him by the arms and advised him he was under arrest. They were then assisted by Corporal E and Constable D.

The fact that Mr. A resisted arrest and force was used on him is not in dispute. The evidence shows that Mr. A immediately began to struggle with the members and refused to follow instructions to put his hands behind his back to be handcuffed. Mr. A admitted in his statement that he resisted arrest by grabbing one of the members and by holding his arms under his chest so that the members could not handcuff him. The members indicated that Mr. A resisted arrest by pushing and pulling his arms, kicking his legs and not complying with demands to put his hands behind his back. Constable C stated that Mr. A attempted to crush his fingers by closing the handcuff on his hand. During the struggle, the members indicated that they attempted various empty hand control techniques. The CEW was also deployed on Mr. A two times to try and gain control of him. None of these pain compliance techniques appeared to have any effect on Mr. A. Eventually, the four members were able to apply the handcuffs on Mr. A.

I find that Mr. A's actions to this point in time-refusing to follow directions to put his arms behind his back, pushing and pulling away, kicking, putting his hands under his chest, attempting to crush Constable C's fingers-could most reasonably be classified as behaviour that was resistant to combative. The members had employed empty hand control in trying to place handcuffs on him, but this failed. At the same time, members of the crowd were gathering around the scene requiring the assistance of the bouncer, thereby elevating the members' concern about the possible intervention of other individuals in the bar. The members were rightfully worried about their safety and the safety of the public and sought to arrest Mr. A and remove him from the bar quickly.

Given the foregoing, I find that the force used by the members, including the deployment of the CEW on the first two occasions by Constable B and Corporal E, was justifiable and appropriate in the circumstances and consistent with RCMP policy particularly in the circumstances of the members facing defiance by an intoxicated and aggressive individual in the presence of a crowd apparently supportive of Mr. A. I note that neither Corporal E nor Constable B provided evidence that they issued the CEW challenge prior to discharging the CEW. I also find that given the immediate action required by the members and the perceived threat level at the time, it was impractical to do so and therefore, the decision not to issue a CEW challenge was reasonable.

Subsequent CEW Deployment

All of the members provided evidence that as they approached the police vehicle, Mr. A began to struggle by twisting from side to side to try to pull away and that as he was being pushed into the vehicle Mr. A kicked Constable C in the chest. Constable B, Constable D and Corporal E all stated that the CEW was deployed against Mr. A outside the police vehicle; however, they did not give consistent accounts at what point this occurred. Constable B and Constable D both stated that the CEW was deployed against Mr. A prior to the members pushing him into the vehicle and prior to him kicking Constable C. On the other hand, in her statement, Corporal E indicated that as the members were escorting Mr. A to the police vehicle, she warned him that he would be tasered if he continued to resist. She then stated that as the members were putting Mr. A in the police vehicle, he kicked Constable C and for that reason she deployed the CEW on Mr. A. I note that in her CEW Usage Report, Corporal E provided a different version of events than that provided in her initial statement. In this report, Corporal E provided that Mr. A was struggling and refusing to enter the police vehicle and for that reason she used the CEW on him and the members were then able to get him into the police truck. Although Mr. A admitted that he kicked Constable C in the chest when he was placed in the vehicle, he did not provide any evidence regarding the CEW being used on him at this time.

Given the inconsistency between the members' evidence, with respect to this and other issues surrounding this case, I am unable to make a specific determination as to when the CEW was deployed on Mr. A, i.e. outside of the police vehicle or inside. That said, the issue of whether the CEW was deployed before or after he was placed in the vehicle is not determinative as to the propriety of the use of the CEW in this case. In either scenario, Corporal E would have been justified in deploying the CEW.

Events such as those surrounding the arrest and subsequent detention of Mr. A are highly charged and quickly evolving. Consequently, it is often the case that it is difficult for witnesses to parse through the details of when specific actions were taken with precision and not uncommon that inconsistencies emerge from subsequent statements taken of those at the scene.

At the time of the first application of the CEW, Mr. A was not yet restrained and was combative and actively resisting arrest in the midst of a crowd apparently supportive of Mr. A. Further, the arrest of Mr. A in the bar was clearly one that required a significant degree of force on the part of the members to effect. He violently resisted the arrest causing the members to respond with a commensurate level of force. While they were successful in placing handcuffs on him, his hands remained at the front of his body permitting him to remain quite mobile, with the potential of inflicting injury upon any of the members present. In fact, he did kick Constable C in the chest. At the time of the third discharge by the police vehicle, Mr. A was handcuffed with his hands in front of his body and led outside away from the crowd. While Mr. A no longer posed as great a physical threat as he had before, the circumstances and dynamic nature of the encounter were as such that it was reasonable for the members to be concerned about their safety. Moreover, there was only a brief amount of time that elapsed from the time of the arrest to the events that occurred at the police vehicle parked nearby.

I also take note of the fact that the arresting members were so concerned about their safety, that they read Mr. A his Charter rights and police warning only after they had travelled a safe distance away from the bar in the police vehicle. The members' concern about injury to Mr. A and themselves due to thrown bottles and the like was reasonable and necessitated placing Mr. A into the police vehicle as quickly as possible.

Given the foregoing, I find that the third deployment of the CEW against Mr. A by Corporal E was reasonable and appropriate in the circumstances.

The use of the restraint chair

In his statement, Mr. A alleged that when he tied the piece of cloth around his neck, he passed out and when he awoke, the members were removing his clothes and then placed him in the restraint chair.

The four members along with the cell block guard all stated that Mr. A's clothing was removed after he attempted to choke himself. Shortly thereafter, the members decided to use the restraint chair as Mr. A was observed hitting his head off the toilet seat. All of the members stated that Mr. A was placed in the restraint chair without incident and he was placed back in the cell with a blanket covering him. Mr. A was kept in the restraint chair for approximately two hours and thirty minutes.

In their various statements and reports, Constable C, Constable B and Corporal E claimed that Mr. A was, for most of the time that he was in the chair, shaking and bouncing around in the chair and at one point, he managed to move the chair across the floor to the wall. In fact, Constable C and Corporal E stated that the members had to enter the cell and place the chair back in the middle of the cell again. On the other hand, Constable D indicated in his Supplementary Occurrence Report that Mr. A continued to slam himself in the chair for the first thirty minutes and that when he and Constable C entered the cell to check on him after approximately two hours, Mr. A seemed to have "calmed down a bit."

A review of the cell video shows Mr. A kneeling in front of the toilet at approximately 11:33 p.m. It appears that he was banging his head off the toilet seat. At 11:37 p.m., Mr. A is escorted out of the cell and he is then placed back in the cell in the restraint chair at 11:39 p.m. For the first thirty minutes, Mr. A appears to be attempting to struggle out of the restraints and does in fact cause the chair to move across the floor to the wall. After the first thirty minutes, however, Mr. A does not move or shake the chair and appears to have calmed down. At 1:41 a.m., Constable C and Constable D enter the cell and appear to adjust the leg restraints on the chair and speak with Mr. A. They then cover Mr. A with a blanket and exit the cell. The members re-enter the cell at 2:09 a.m. and release Mr. A from the restraint chair. The chair is then removed from the cell and Mr. A remains in the cell. Contrary to the assertions of Constable C and Corporal E that members entered the cell at one point to place the chair back in the middle of the cell, this does not appear to have happened.

I have reviewed the RCMP policy regarding the use of the restraint chair in effect at the relevant time. Key sections of note are the following:

3. 4. You may only use a restraint chair to prevent a prisoner from injuring himself/herself or others. The chair may also be used to prevent damage to cell-block property.

3. 5. Constantly monitor a prisoner in a restraint chair. While a prisoner is in a restraint chair, he/she must not be allowed visitors and must not be interviewed.

3. 9. When the prisoner is composed and responsive, remove the prisoner from the restraint chair.

3. 10. Document in your notebook and on the file, the reason for using this type of restraint.

3. 11. If a prisoner is restrained for more than two hours, document the reason in your notebook and on the file.

3. 12. As soon as it is practicable, tell your supervisor that a prisoner has been restrained in a restraint chair.

My review of the evidence leads me to conclude that the initial use of the restraint chair was a reasonable response to Mr. A's conduct. Given his attempt to choke himself followed by slamming his head against the toilet seat, the use of the restraint chair was a justified measure to prevent Mr. A from injuring himself. However, the policy with respect to the use of the restraint chair required that Mr. A should have been removed once he was composed and responsive. The video shows that Mr. A appeared to be much calmer and composed after the first thirty minutes in the chair; however, none of the members entered the cell to reassess Mr. A until 1:40 a.m. Further, although Constable D noted that Mr A seemed to have calmed down a bit when he and Constable C entered the cell at 1:40 a.m., Mr. A was kept in the chair for an additional thirty minutes. Given the foregoing, I find that the members did not comply with RCMP policy with respect to the use of the restraint chair in that the members should have taken Mr. A out of the restraint chair once he was under control. In my view, at the latest this would have been at 1:40 a.m. and the decision to keep Mr. A in the restraint chair past 1:40 a.m. was inappropriate.

I note that in her Supplementary Occurrence Report, Constable B indicated that according to the policy regarding the use of the restraint chair, the subject was to be reassessed after two hours to see if it was appropriate to release him from the chair. It is clear that this member misunderstood the policy in effect at the time. which dictated that the prisoner was to be constantly monitored and removed from the chair when he/she was composed and responsive.

Adequacy of the Public Complaint Investigation

Serious allegations are raised in this complaint about the use of excessive force by four members. The essence of this excessive force complaint is the allegation that the CEW was discharged against Mr. A five times during his arrest and lodging in cells. A professional investigation should examine in a thorough and credible manner how many times the CEW was used on Mr. A as well as where and when this happened. In my view, this investigation was inadequate. While the statements of the members indicated that the CEW was deployed against Mr. A, they provided inconsistent accounts of how many times this occurred. This inconsistency was never directly canvassed with any of the members during the public complaint investigation. The members should have been questioned vigorously at the time on this point.

In addition, it is unclear whether Mr. A was subjected to the CEW when he was lodged in cells. Pertinent information that would have assisted in clarifying these issues such as the members' notes and the CEW Usage Report were not obtained and reviewed during the investigation. If these issues had been investigated, I would hopefully be in a better position to determine conclusively whether the use of force was reasonable or excessive. Also of concern is the adequacy of the RCMP's Final Report and particularly the fact that it was silent with respect to the use of the CEW on Mr. A.

It was open to me to request that the RCMP conduct a further investigation into this instance. However, over two years have passed since the incident in question, and the members' recollections of the incident are likely much less accurate given the passage of time. This is particularly demonstrated in the account provided in the CEW Usage Report provided by Corporal E in December 2008, which was substantially different than her initial statement. In addition, the recollections of potential witnesses flowing from the members' evidence will likely have diminished with time and their usefulness curtailed. This complaint demonstrates that a further investigation undertaken well after the incidents giving rise to allegations of improper conduct is not a substitute for an initial investigation done thoroughly.

Police officers are trained in interviewing techniques and analyzing information, and to be thorough and professional. In investigating public complaints, as in criminal investigations, it is imperative that these qualities be demonstrated and an equal standard, the highest standard, applied to each. The legitimacy of the current public complaint investigation framework depends, in large part, on the recognition of this fact by those charged with investigating public complaints and those to whom the investigators report.

In light of my comments made above, I will be providing a copy of this report to the public complaint investigator as well as the member who drafted the Final Report in this instance in order to underscore the need for consistent public complaint investigations that thoroughly address the allegations at issue.

Conclusion: Based on the foregoing, I conclude that the public complaint investigation conducted in this instance was inadequate.

Recommendation: I recommend that the Commissioner take steps to remind members of the importance of the public complaint process and the integral role that members play in that process, and of the need to maintain high investigative standards to ensure the effectiveness and credibility of the public complaint process.

Pursuant to paragraph 45.42(3)(a) of the RCMP Act, I respectfully submit my Interim Report.

Paul E. Kennedy
Chair

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1 The CEW is often referred to by the name of the manufacturer of the brand by the RCMP, Taser.

2 Mr. F was the cell block guard on duty at the relevant time.

3 Mr. G was a bouncer at the bar at the time of Mr. A's arrest.

4 The CEW can be used in two modes, both of which apply an electric shock to the subject. In touch stun mode the CEW is pressed against the subject with the intent of gaining compliance through pain. In probe mode the device fires two probes attached to the CEW by wires. If these properly imbed in a subject they should override the sensory and motor nervous systems causing pain and muscle contractions leading to the incapacitation of the subject.

5 R.S.C. 1985, Chap. C-46.

6 Operation Manual 17.1.

7 CAPRA is an acronym for clients/acquiring and analyzing information/partnerships/response/assessment.

8 These factors are as varied as the incidents to which they apply and may include the number of subjects being dealt with, their size and demeanour, whether they are armed, the number of members, the lighting, environmental conditions, etc.