Chair's Interim Report – Incident Related to Excessive Use of Force and Oppressive Conduct
RCMP Act Paragraph 45.42(3)(a)
Vetted version for posting
February 23, 2009
Overview
Shortly before midnight on November 18, 2007, Constable G.H. and Constable F.E. of the Kelowna RCMP Detachment in British Columbia intercepted a Honda Ridgeline, which had been reported stolen. All five occupants, including Mr. A, were arrested for possession of stolen property over $5,000. Mr. A, who was well known to the RCMP as an individual involved in drug trafficking, was brought to the RCMP detachment, where he was lodged in cells.
On September 17, 2008, Mr. A complained to the Commission for Public Complaints Against the RCMP (the Commission) and alleged that Constables G.H., J.K. and F.E. assaulted him while he was at the detachment. He also alleged that since the arrest, Constable G.H. has been harassing and stalking him.
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 October 22, 2008, did not support the allegations.
Mr. A was not satisfied with the RCMP's disposition of his complaint. He requested a review by the Commission on November 18, 2008. The Commission received the investigation documents relating to this matter from the RCMP on December 18, 2008. On January 13, 2009, the Commission requested that the RCMP provide a copy of the cell block video, which it received from the RCMP on January 27, 2009.
For the reasons outlined below, I conclude that Constable G.H. used an improper level of force during Mr. A's incarceration. However, I find there is insufficient evidence to determine whether Constable G.H. acted improperly as per the complainant's second allegation.
Commission's review of the Commission
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 conclusions and findings are based on the examination of the following materials: Mr. A's complaint and correspondences, a letter written by Constable G.H., the cell block video that recorded Mr. A's arrival at the detachment, strip search and lodging into cells, the RCMP's investigational materials; the public complaint investigator's report; and the RCMP's Final Report.
First Allegation: Constables G.H., J.K. and F.E. used excessive force while performing a search of Mr. A's person.
Facts1
Mr. A was a passenger in a stolen vehicle that was intercepted by Constables G.H. and F.E. Mr. A was known to the members as an individual involved in drug trafficking, and a background check revealed that Mr. A had been released on a recognizance for Breach of Undertaking. Mr. A was also in breach of his parole which imposed on him numerous conditions (one of which was that he not be present in a motor vehicle unless the registered owner of the vehicle was present). Mr. A did not dispute the fact that the owner of the vehicle was not present and the RCMP concluded he was in breach of the aforementioned condition.
The RCMP further stated that drug paraphernalia as well as a minimal amount of drugs were found in the vehicle and because of this, along with the fact that Mr. A had been involved in drug trafficking, Constable G.H. found it advisable to strip-search Mr. A while at the detachment.
Mr. A
Mr. A alleged that he was subjected to excessive force while in the RCMP's custody. In correspondence to the Commission received on January 9, 2009, he further stated that while he was naked and handcuffed, he was beat up by Constables G.H., J.K. and F.E. He said that this "direct illegal violation" and his subsequent detention left his residence unattended and unsecured.2 Yet a review of the video evidence revealed that Mr. A indicated he did not have a fix address and all of the RCMP subsequent correspondence confirmed this.3
The RCMP
In its Final Report, the RCMP described what had transpired during Mr. A's incarceration and explained that at 12:11 a.m. and while the complainant was undressing, Mr. A threw his boxer shorts at Constable G.H.'s face. The RCMP then explained that Constable G.H. responded by pushing Mr. A to the nearby wall, placing his forearm on Mr. A's upper chest area while advising him that he had just assaulted a police officer. A short struggle ensued after which Mr. A was handcuffed and brought to a nearby cell. The RCMP concluded that given Mr. A's actions and combativeness, the members had acted reasonably and because of this, it concluded that the allegation was unsubstantiated.
Video Evidence
The video evidence depicted all of the RCMP members' interactions with Mr. A while he was at the detachment. Mr. A was seen exiting the police vehicle and enter the detachment. He was left alone in a room for a short period of time, after which he was brought to another room where he was asked to take his clothes off. Throughout his dealings with RCMP members, Mr. A spoke in a loud and aggressive voice, he was intentionally offensive and disrespectful.
There was a quick discussion between Constable G.H. and Mr. A about the removal of Mr. A's shirt. Contrary to what Mr. A alleged, Constable G.H. did not cut his shirt with a pair of scissors, although the member prepared to do so given Mr. A's resistance to having the handcuffs removed. The evidence revealed that Mr. A continued his offensive behaviour while Constable G.H. removed the handcuffs from his wrists.
The video evidence revealed that once Mr. A removed his boxer shorts, he threw them at Constable G.H., who leaned towards his left in order to avoid them. This action was the culmination of Mr. A's clear disrespect of authority figures4 and in this case, specifically aimed at Constable G.H. The latter moved forward using his forearm to immobilize Mr. A and told him he had just committed the infraction of assaulting a police officer. A short struggle ensued, after which two additional members attended the room to assist Constable G.H. Within seconds, Mr. A was handcuffed, brought to his feet and lodged in cells, naked. Little force was used against Mr. A once he was handcuffed.
Analysis
When dealing with an individual, members are to comply with the principles outlined in the RCMP's Incident Management/Intervention Model (IM/IM).5 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.6 The model requires members to consider all relevant situational factors7 when determining whether 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 behaviour manifested by Mr. A at the station, and as evidenced by the video, gradually evolved from passive aggressiveness to a more belligerent character as manifested by his loud and oppressive voice, culminating in his final affront wherein he sought to throw his underwear in the face of Constable G.H.
The video evidence showed that there existed few factors that could have reasonably justified the use of force as applied by Constable G.H. Mr. A, who is a smaller individual than Constable G.H., was naked, in a secure environment and thus presented little risk to Constable G.H.'s safety. Although Mr. A's act of throwing his boxer shorts at Constable G.H. was provocative and may have amounted to an attempted assault, Constable G.H.'s response was unfortunate and unnecessary. It is to be expected that individuals with acute anti-social attitudes or suffering from the effects of substance abuse will engage in highly offensive behaviour while in the custody of the police. RCMP members are trained to control their emotions when faced with such behaviour. Despite Mr. A's clear provocative nature, Constable G.H. should have restrained himself from acting in the manner that he did.
The video evidence also showed that the other members who assisted Constable G.H. intervened to subdue Mr. A; they acted in this fashion because Mr. A was screaming while struggling with Constable G.H. The fact that other members assisted Constable G.H. does not warrant, given the circumstances, an adverse finding relative to their conduct. However, given the aforementioned conclusion, I find that Constable G.H.'s use of force was unnecessary.
Finding: Constable G.H.'s use of force was unnecessary in the circumstances.
Recommendation: That Constable G.H. receive refresher training as to the principle of the RCMP's IM/IM and CAPRA problem-solving model as they specifically relate to the use of force.
Second Allegation: Since November 2007, Constable G.H. has been stalking and harassing Mr. A.
Through his correspondence to either the RCMP or to the Commission, Mr. A alleged that Constable G.H. has been stalking and harassing him since the incident under review. Mr. A reported a statement allegedly made by Constable G.H. to certain individuals, but this statement remained confusing and general. Moreover, Mr. A offered no names of witnesses who could corroborate the alleged improprieties committed by Constable G.H.
Notwithstanding this, the RCMP requested that Constable G.H. explain the potential meaning of this allegation. He denied ever acting in the manner portrayed by Mr. A. Constable G.H. wrote that he had assisted in the execution of search warrants at Mr. A's residence, and that Mr. A had allegedly made threats against his life and the life of another member. However, he said he had limited dealings with Mr. A and denied the complainant's allegation.
Notwithstanding the fact that no statements were taken from Mr. A, the evidence showed that the RCMP asked Constable G.H. to elucidate, to the best of his knowledge, the allegation made against him. Constable G.H. denied the allegation and there was no corroborating independent evidence that could substantiate the complainant's version of events. Given this, I find there is insufficient evidence to determine whether or not Constable G.H. stalked and harassed Mr. A.
Finding: There is insufficient evidence to determine whether or not Constable G.H. stalked and harassed Mr. A.
Pursuant to paragraph 45.42(3)(a) of the RCMP Act, I respectfully submit my Interim Report.
_____________________
Paul E. Kennedy
Chair
1 The facts, as presented by the RCMP in its Final Report, were not contested by Mr. A either in his complaint or in his request for review to the Commission.
2 He alleged that the members' actions allowed "street homeless gangs to take up residence in [his] home and completely destroy it." He claimed having suffered damages totalling $285,000.
3 The RCMP's correspondence was made out to Mr. A, c/o ROOC, PO Box 555, Kamloops, British Columbia, K2T 0M6.
4 The evidence also revealed that once lodged in cells, Mr. A urinated on the floor several times as he continued to display his contempt for the police.
5 Operation Manual 17.1.
6 CAPRA is an acronym for Clients/Acquiring and analyzing information/Partnerships/Response/Assessment.
7 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.