Chair's Interim Report – Incident Related to Improper Arrest, Excessive Use of Force and Neglect of Duty

RCMP Act Paragraph 45.42(3)(a)

Vetted version for posting

February 9, 2009

Overview

On August 15, 2007, Mr. H and Mr. J, two by-law officers employed by the Regional Municipality of Wood Buffalo, Alberta attended Mrs. A's residence following a complaint concerning a noxious smell coming from an outdoor fire pit located in the yard of the home. Upon their attendance, Mr. H and Mr. J observed smoke emanating from an unattended and unprotected fire pit. Mrs. A's husband, Mr. B, met the by-law officers and began videotaping them as they examined the fire pit. Mr. B was asked to identify himself numerous times, but failed to do so.

As they could not identify Mr. B, the officers requested the assistance of the Wood Buffalo RCMP Detachment and the local fire department. Shortly after, six individuals from the fire department attended, but by that time, Mr. B had extinguished the fire with a garden hose. The attending fire department personnel asked for Mr. B's name but the latter did not provide it.

Constable D.G. and Corporal T.J. attended the residence shortly thereafter in response to the request for assistance from the by-law officers. After a short discussion, both members approached Mr. B, who was videotaping the incident from the front yard of the home, and asked him to stop recording the members. When he refused, Constable D.G. grabbed the camera and a struggle ensued with Mr. B being brought to the ground and placed under arrest for obstructing a police officer. He was then handcuffed and brought to the Wood Buffalo RCMP Detachment.

On September 6, 2007, Mr. B's counsel, Mr. C, complained to the Wood Buffalo RCMP Detachment and alleged that Constable D.G. had assaulted his client, that she had improperly arrested him, and that she had used excessive force to effect the arrest. Mr. B made additional allegations against members of the Wood Buffalo RCMP Detachment and stated, among other things, that he was mistreated while he was in the RCMP's custody.

Pursuant to 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 RCMP's Final Report, dated May 22, 2008, did not support the allegations.

Mrs. A was not satisfied with the RCMP's disposition of the complaint. She requested a review by the Commission on October 20, 2008. The Commission received the investigation documents relating to this matter from the RCMP on October 30, 2008. On December 23, 2008, the Commission requested that the RCMP provide a copy of the cell block video; the RCMP responded on February 4, 2009 that the video in question apparently no longer existed.

For the reasons outlined below, I conclude that Constable D.G. improperly arrested Mr. B and consequently that the force used to effect the arrest was unreasonable in the circumstances.

With regards to the allegation of assault made against Constable D.G., the Commission's mandate centers on the conduct of RCMP members and not on statutory allegations. Moreover, I will defer to Crown counsel's conclusion that there was no likelihood of conviction in the circumstances. In respect of the allegation of improper conduct made against one of the by-law officers, my legislative mandate offers me the authority to only make findings concerning individuals employed or appointed under the RCMP Act. Accordingly, the Commission does not have jurisdiction to establish whether or not the by-law officer acted inappropriately in the circumstances.

Finally, as for the other allegations made by Mr. B, I find that insufficient evidence was provided in support of these allegations and therefore I am unable to make a finding related thereto.

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 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 conclusions and findings are based on the examination of the following materials: Mr. C's complaint and correspondence, letters from Mr. B along with his statement, Mrs. A's statement, statements made by Mr. C, Corporal T.J., Officer H and Officer J, Mr. B's video recording of the incident, the RCMP's investigational materials; the public complaint investigator's report; and the RCMP's Final Report.

First Allegation: Constable D.G. improperly arrested Mr. B and used excessive force to effect the arrest.

In one of his statements, Mr. B said he was punched a few times in the head, that Constable D.G. pushed the camera out of his hand and that she used excessive force when she arrested him. He also said that she choked him, that she placed her hands on his mouth and nose, which caused him serious breathing difficulty. He further said he was "in and out" of consciousness during the incident and that he was also assaulted by one of the by-law officers. Mrs. A said her husband was mistreated by the RCMP members, but she readily acknowledged not seeing what had transpired given the fact that she was inside the residence during most of the incident.

In its Final Report, the RCMP reported the facts that were presented by the two by-law officers and the members of the RCMP. Given this, I will not restate what was described in the RCMP's Final Report. However, I shall elaborate on what transpired during the incident because I am of the view that the manner in which Constable D.G. conducted herself was improper.

Facts

At the outset, it bears mentioning that the entire sequence of events appears to have been captured on videotape by Mr. B. The video recording provided by Mr. B shows two by-law officers entering the backyard to assess the situation. Officer H approached the fire pit and realized that he was being videotaped. He asked Mr. B his name but the latter failed to provide an acceptable answer. Mr. B repeatedly said to the officers that they were on private property, and asked the officers to identify themselves, which they did. However, throughout the video recording of the incident, Mr. B never identified himself. In fact, on one occasion he told both officers he was an individual acting on behalf of "Mr. B", apparently the owner of the residence. Due to Mr. B's lack of cooperation, Officer H requested the assistance of the RCMP and personnel from the fire department. It is at this time that Mr. B extinguished the fire with a garden hose. During this time Officer H asked for Mr. B's name a number of times. Each time he was asked to provide his name Mr. B replied "is the fire out?"

The video recording shows a number of individuals from the fire department attending the residence and then walking towards the backyard apparently to evaluate whether or not the fire had been extinguished. One of the individuals pointed out that the fire pit was dangerously close to a shed, and another asked for Mr. B's permit. When Mr. B told them he did not have a permit for his fire pit, he was told he would be fined. Once again, Mr. B failed to identify himself. The fire department personnel then left the residence.

Within minutes, Constable D.G. and Corporal T.J. attended the residence. They are observed exiting their police vehicles, briefly talking to both by-law officers and then approaching Mr. B who at the time was standing on what appears to be the front lawn of the residence. Constable D.G. immediately ordered Mr. B to stop recording, which he did not. Constable D.G. then told him that if he did not put his video recorder down, he would be brought to the ground. Within seconds, Constable D.G. placed her hand on Mr. B's video recorder and pushed it downwards and a short struggle ensued. Shortly thereafter, Mr. B was immobilized and placed under arrest for obstructing a police officer.

Analysis

The RCMP contends that Constable D.G. arrested Mr. B for obstructing a police officer under section 129(a) of the Criminal Code.The legal elements of this offence are: (a) there must be obstruction, (b) the obstruction must have been willful and (c) the police must have been in the lawful execution of their duties. In order for an arrest for obstruction to be lawful, all three of these elements must be satisfied.

In the current case, it is clear that Mr. B failed to provide his name to the attending by-law officers and therefore was obstructing them in the lawful execution of their duties. The issue under review is whether or not Mr. B was obstructing Constable D.G.'s lawful execution of her duties and if he was advised of the consequences of his obstruction. Concurrently, if it is deemed that the arrest was improper, then any use of force used to effect such an arrest will similarly be found to be improper.

Section 25 of the Criminal Code empowers a peace officer to use as much force as is reasonably necessary in the administration and enforcement of the law. In addition, the RCMP's Incident Management/Intervention Model (IM/IM), which is used to train and guide members in the use of force, promotes risk assessment and depicts various levels of resistant behaviours and reasonable intervention options. As with similar models, the IM/IM is based on the principle that the best strategy employs the least intervention necessary to manage risk. Accordingly, the best intervention causes the least harm or damage. The guide promotes the use of verbal interventions wherever possible, to both defuse potentially volatile situations and promote professional, polite and respectful attitudes to all. These guidelines are based on the RCMP's CAPRA¹ problem-solving model and require members to consider all relevant situational factors when determining whether to use force, and the necessary amount of force to use in the circumstances.

It should be noted that throughout this incident, I found Mr. B's behaviour in videotaping the by-law officers, fire department personnel and attending members to be inappropriate, disrespectful, and inconsistent with what one would expect of a reasonable person who is being asked straightforward questions from authority figures investigating an incident pertaining to a neighbour's complaint about a relatively simple matter such as an authorized fire pit. Mr. B himself admitted, in one of his statements, that he was partly to blame for the situation. That said, and as much as Mr.  B's behaviour was a contributing factor to the incident, I find that Constable D.G.'s actions were inappropriate in the circumstances.

The video evidence showed that Constable D.G. did not inform Mr. B that his failure to identify himself could result in his being placed under arrest for obstruction. Rather, Constable D.G. walked up to Mr. B and ordered him to stop recording her. Although Corporal T.J. told Mr. B he could be arrested for obstruction, his directions were given as Constable D.G. reached for Mr. B's video recorder. A more appropriate response from Constable D.G. would have been to first and foremost verbally engage Mr. B with a clear explanation of the consequences of his actions and explain to him that his failure to identify himself could lead to his arrest and charges of obstructing a police officer. This did not happen and because of this, the elements that would have empowered Constable D.G. to perform an arrest for obstruction were not met. Given this, I find Constable D.G.'s intervention was not consistent with appropriate standards of conduct and as such was improper and less than professional. Because Constable D.G.'s arrest was improper, the force used to perform the arrest was also improper.

Finding: Constable D.G.'s arrest of Mr. B was improper. Given that the arrest was improper, the force used to effect the arrest was also improper.

It is unfortunate how a relatively routine matter was permitted to degenerate into the facts leading to Mr. B's complaint. Certainly, Mr. B and/or one of the members could have been injured in the melee that ensued considering they were on the ground.

Although the RCMP found that Constable D.G.'s conduct was appropriate, it nevertheless apologized to Mr. B "if [he] perceived Constable D.G.'s attitude was anything less than professional [...]." In light of the circumstances, while it would have been preferable to have Constable D.G. apologize, an apology on her behalf will suffice.

The RCMP also indicated, in its Final Report, that the matter had been brought to Constable D.G.'s attention and that she had been provided guidance on alternative approaches to defuse similar situations. Given these steps taken by the RCMP and notwithstanding my adverse finding, I am satisfied that the RCMP properly disposed of Mrs. A's complaint as it relates to Constable D.G.

Mr. B also alleged that Constable D.G.'s actions toward him amounted to an assault and that criminal charges should be laid accordingly. In its Final Report, the RCMP indicated that the Crown had concluded there was no likelihood of conviction against Constable D.G. in the circumstances and because of this the RCMP could not support the allegation. Although I have found that the force used during Mr. B's arrest was improper, my conclusion should not be construed as substantiating the allegation of assault against Constable D.G. under the Criminal Code. That specific determination is more appropriately left to the judiciary and because of this, I defer to Crown counsel's conclusion that there was no reasonable likelihood of conviction and as a result that charges not be laid.

Second Allegation: Members of the Wood Buffalo RCMP Detachment assaulted Mr. B while he was in custody.

The second allegation made by Mr. B resulted from a statement that he provided to the RCMP detachment on January 21, 2008. This allegation was not part of the original complaint, and there was no indication that Mr. B had communicated these alleged improprieties to his counsel at the moment of the initial complaint.

Ms. N, who was a guard at the time of Mr. B's release from RCMP custody, said she did not notice any injuries to Mr. B's face. She said Mr. B had cooperated while he was in custody, but that he had been loud. She also said Mr. B's only comments were relative to his video recorder being broken, and that he never complained about any other maltreatment.

In its Final Report, the RCMP stated that it had looked at the cell block video that had recorded Mr. B while he was in cells. The RCMP stated that there was no evidence of any struggle, other than on one occasion, where one member was seen applying an arm hold to Mr. B, while another member conducted a cursory search of his person. Because of this, the RCMP did not support the complainant's allegation.

For unknown reasons, the cell block video was not included in the materials provided to the Commission by the RCMP. However, the facts showed that the video existed at the time of the public complaint investigation. As such, the video's content should have been protected and treated as an exhibit as it remained relevant to explain what had transpired at the detachment.

Finding: The Wood Buffalo RCMP Detachment failed to provide the Commission with all materials relevant to Mrs. A's complaint.

As stated above, in its Final Report, the RCMP stated that it had reviewed the cell block video, and that on one occasion, one member was seen restraining Mr. B by applying an arm hold (one of Mr. B's arm was being held behind his back), while another member performed a search of his person. Although the RCMP corroborated the existence of an application of force on Mr. B, it nevertheless concluded that it could not support the complainant's allegation.

The evidence showed that Mr. B complained that while being in the cell block area, unidentified members of the Wood Buffalo RCMP Detachment assaulted him and subjected him to extreme pain to his hand and wrist area. He said that when he asked the members to stop hurting his thumb, they laughed at him. The RCMP partially supported his allegation in as much as it recognized that Mr. B had been subjected to an arm restraint while he was in the cell block area.

The rationale provided by the RCMP to dismiss this allegation was contradictory. On the one hand, the RCMP stated that the video failed to reveal any evidence to suggest that a struggle had occurred, and yet it failed to provide any plausible explanation as to why Mr. B was subjected to an arm restraint. That is, the video recording allegedly revealed that Mr. B was cooperative and non-combative, but he was nevertheless subjected to an arm restraint that he said caused him extreme pain to his arm and wrist. Given the RCMP's own recognition that an arm restraint was applied to Mr. B while he was nevertheless cooperative, I find that this use of force was unnecessary and therefore improper in the circumstances.

Finding: Mr. B was unnecessarily subjected to an arm restraint while he was in the cell block area of the detachment.

Third Allegation: While being in cells, unidentified members of the Wood Buffalo RCMP Detachment laughed at Mr. B, and they humiliated him, they denied him proper bedding, a pillow, toilet paper, as well as an opportunity to exercise his constitutional rights.

Ms. N, who worked as a guard when Mr. B was taken to cells, said she saw nothing irregular that day. She said she remembered Mr. B complaining about his video recorder and that he was loud, but not violent. She said she failed to notice anything unusual in how Mr. B was treated.

In its Final Report, the RCMP stated that the video showed Mr. B contacted legal counsel within five minutes of his being lodged into cells. The investigator also said the video recording failed to show any irregularity or improprieties that would have been committed by the members who were present. Because of this, the RCMP concluded there was no evidence to support this allegation.

The evidence showed that on October 30, 2007, the public complaint investigator spoke with Mr. B regarding the incident, and explained to him that he was collecting facts surrounding the incident that had occurred at his residence as well as at the detachment. He asked Mr. B if he would be willing to provide a statement, and Mr. B answered in the affirmative. However, Mr. B asked that he first be provided with the names of all members and guards that were present at the detachment while he was in custody.

According to the evidence, there were a number of members/guards present at the moment of Mr. B's booking; however, not all of them were identified. The only statement that was taken by the public complaint investigator was that of Ms. N. The evidence suggested that Corporal S provided some information relative to the incident, but this information was not included in the relevant materials. The evidence also suggested that a guard named Ms. K was present at the moment of Mr. B's booking, but no efforts were made to contact her given that she had been transferred to another detachment.

It is apparent, from the facts of this file that, little was done to ascertain the validity of Mr. B's allegation as it pertained to alleged improprieties committed by members of the Wood Buffalo Detachment. The members were not identified, yet one of them had improperly and without justification applied an arm restraint to Mr. B while he was detained at the detachment. There was little evidence to shed light on what transpired (if anything) during Mr. B's detention and because of this I find that the RCMP conducted an inadequate investigation into Mr. B's public complaint.

Police officers are trained in interview 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, apply 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.

Finding: Based on the foregoing, I conclude that the public complaint investigation conducted in this instance was inadequate. Consequently, there is insufficient evidence to determine whether or not unidentified members of the Wood Buffalo RCMP Detachment acted improperly during Mr. B's detention.

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

_____________________
Paul E. Kennedy
Chair

1 CAPRA: Clients/Acquiring and Analyzing Information/Partnerships/Response/Assessment. This is the general problem-solving paradigm used by the RCMP to promote functional competency in policing.