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
March 16, 2009
Overview
In the early morning hours of June 30, 2004, Mr. B was stopped by Constable C of the Kamloops, British Columbia RCMP Detachment as he was leaving the a motel. Constable C parked his vehicle behind Mr. B's van and both men exited their vehicles, at which point apparently a brief discussion ensued. Within a short period of time, the discussion quickly became a physical altercation causing Constable C to call for backup. By the time the other RCMP members arrived at the scene, Constable C had handcuffed Mr. B and had placed him under arrest for assaulting a police officer. Mr. B was read his rights, brought to the RCMP detachment and lodged in RCMP cells. The next morning, Mr. B was released into his mother's custody and given a Promise to Appear.
In the subsequent court proceedings, Mr. B was found not guilty of assaulting a police officer as the presiding judge had a reasonable doubt as to whether or not Constable C was in the lawful execution of his duties. At the conclusion of his reasons for judgment, Judge Gordon of the Provincial Court of British Columbia stated:
As a footnote, I can certainly say that what I have heard in this case ought to cause those in charge at the local R.C.M. Police detachment to make further inquiry, in the hope that the sort of conduct that Mr. [B] alleges here has not become a practice within this detachment.
On July 22, 2005, Ms. A (Mr. B's mother) complained to the Commission for Public Complaints Against the RCMP (the Commission) and alleged, among other things, that her son had been unlawfully arrested, improperly detained, subjected to an excessive level of force, threatened, punched and kicked several times, and that he was improperly cared for when he was in RCMP cells.
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 a letter dated September 14, 2005, the RCMP advised the complainant that it would not investigate the incident because the matter was before the courts.
On February 13, 2006 after Mr. B's acquittal, the RCMP reopened its investigation into the aforementioned allegations. In a letter dated June 25, 2008, the RCMP provided the complainant with its Final Report, which did not support the complainant's allegations.
Ms. A was not satisfied with the RCMP's disposition of her complaint. Given the specific facts of the incident and in advance of the RCMP producing its Final Report, on May 22, 2008 the then Vice-Chair of the Commission advised the RCMP that he considered a further investigation into the complaint to be warranted.
I will first address the RCMP's decision to terminate the investigation into Ms. A's complaint and will then address the subject matter of the allegations.
RCMP DECISION TO TERMINATE OR NOT COMMENCE A PUBLIC COMPLAINT INVESTIGATION
It is important to note that, in cases where the RCMP has terminated, or not commenced a public complaint investigation, it is first and foremost, incumbent upon the Commission to assess the reasonableness of that decision. If the Commission finds that the direction was reasonable, there will be no finding with respect to any allegation made in the complaint.
On September 14, 2005, the RCMP terminated its investigation into Ms. A's complaint under paragraph 46.36(5)(a) of the Act. Under this section, the Commissioner may direct that no investigation be commenced or that an investigation be terminated if, in the Commissioner's opinion, "the complaint is one that could more appropriately be dealt with, initially or completely, according to a procedure provided under any other Act of Parliament." The test with respect to paragraph 45.36(5)(a) of the Act is a two-step process: first, an assessment must be made, on a case-by-case basis, as to whether the complaint is being dealt with, initially or completely, according to a procedure provided under another Act of Parliament; second, it must be determined whether the procedure under the other Act of Parliament would address all the issues raised in the complaint about the conduct of the RCMP member(s).
It was improper to conclude that the allegations made against the subject members (excessive force, deployment of the CEW, use of oleoresin capsicum (OC) spray, threats, improper care of prisoner) would be fully addressed by the courts. It is clear from the reasons for judgment that the analysis undertaken by the courts in these matters is different than the analysis required to address Ms. A's complaint.
By addressing the facts surrounding the assault charges against Mr. B, the courts employ the standard of proof of "beyond a reasonable doubt" to assess first of all whether or not Constable C was in the lawful execution of his duties and from that, whether or not he had assaulted Constable C. The court is less concerned with whether or not the subject members had acted pursuant to RCMP policy and/or reasonably in the circumstances.
For the aforementioned reasons it was improper for the RCMP to apply paragraph 45.36(5)(a) of the Act and to terminate the investigation into Ms. A's public complaint.
Finding: The RCMP improperly terminated its investigation into Ms. A's complaint under paragraph 45.36(5)(a) of the RCMP Act.
Commission's Review of the Complaint
For the reasons outlined below, I find that Constable C was not in the lawful execution of his duty and accordingly, improperly and without justification arrested Mr. B. I also find that the attending members failed to take contemporaneous notes of the details of the incident, and that the RCMP failed to return Mr. B's shirt once he was released. I further find there is insufficient evidence to determine whether or not Mr. B was subjected to a CEW, that OC spray was utilized against him or that he was choked and punched while he was sitting in a police vehicle. However, I find that contrary to RCMP policy, the commander of the Kamloops RCMP Detachment failed to keep a control log for CEW usage for the entire 2004 calendar year. Finally and as for the remaining allegations, I am satisfied that either there was insufficient evidence to substantiate certain allegations, or that the subject members acted appropriately in the circumstances.
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: Ms. A's complaint, pictures provided by Ms. A outlining several bruises to Mr. B's torso area, Mr. B's medical report, excerpts from Mr. B's trial, the OCC dispatch transcripts, Constable D's notes, Mr. E's statement, relevant occurrence reports, Constable C's report to Crown counsel, the prisoner report and logs, the RCMP's investigational materials, the public complaint investigator's report, the Commission's further investigation report and conclusions, and the RCMP's Final Reports. As Judge Gordon stated in his reasons for judgment, the lack of evidence has been challenging for the Commission to assess the propriety of the conduct of the members.
First Allegation: Constable C unlawfully arrested Mr. B.
Evidence
While the evidence provided by Mr. B is largely contradictory to that provided by members of the RCMP, there are facts that can be determined with some certainty. Shortly after midnight, on June 30, 2004, Mr. B was leaving the motel and was intercepted by Constable C of the Kamloops RCMP Detachment. Constable C parked his vehicle behind Mr. B's van and after a short discussion a physical altercation ensued between them. The then owner of the motel, Mr. E, was the only civilian witness to the incident. Once the fight began Constable C requested backup and seven additional RCMP members attended the scene. However, the only individuals involved or who witnessed the arrest were Mr. B, Constable C and Mr. E.
a) Mr. B's testimony in court, September 2, 2005
Mr. B said he was backing up his van when Constable C parked his vehicle behind him. He said both he and Constable C got out of their vehicles, and that Constable C ordered him to stop approaching the member. He said he was summoned to return to his vehicle, which he claimed he did. He said once he turned his back to the member, he was told to lie on the ground. Mr. B said he told Constable C that his knees were weak and that he tried to comply with Constable C's directions without getting his knees on the ground. He then said he was punched in the neck and in the face, and that once other members arrived, that he was punched and kicked in the torso area. During his counsel's submissions, it was argued that Mr. B's had actually been the victim of an assault.
b) Constable C's evidence
In his report to Crown counsel, Constable C stated he was attacked by Mr. B during a vehicle check. He wrote he observed a grey van back up from the motel, which was known to be a high drug use/prostitution area. He mentioned he drove his police vehicle in the back of the van and activated his emergency lights. He said he exited his vehicle to speak to the driver (later identified as Mr. B), and while he was walking towards the van, he said the door opened very quickly and Mr. B jumped out of the vehicle, waiving his arms and walking quickly towards him.
Constable C said he ordered Mr. B to stop approaching him and to return to his vehicle, but contrary to his directions, Mr. B continued to approach and once they were in close proximity, he said Mr. B lunged at him. He said Mr. B appeared to be highly impaired by drugs. Constable C said he attempted to control Mr. B by grabbing his right arm and placing him on the ground, but Mr. B resisted. After a few minutes, he said he managed to place Mr. B face on the ground and handcuffed him. He said he read Mr. B his rights and told him he was under arrest for assaulting a police officer.
During his testimony in Mr. B's trial, Constable C said his initial decision to intercept Mr. B was based on the fact that he wanted to ascertain whether or not the vehicle driven by Mr. B was stolen.1 He said the driver lunged at him and a struggle ensued, during which he called for police assistance.2
c) Mr. E's statement taken May 20, 2008
Mr. E, the then owner of the motel, said people who attended the motel were "not very desirable." He said he recalled an incident that occurred in the summer months preceding the sale of the motel (the motel was sold a few months later in 2004) that implicated an RCMP member and a civilian. He said there were often times police vehicles in the vicinity throughout his ownership of the motel, but specified that there had been only one incident during which he had witnessed a civilian struggle with a police officer.
Mr. E said a van or truck was about to leave the motel when an RCMP vehicle arrived. He said the member exited his vehicle, approached the driver, and engaged in a short discussion while the individual stayed in the driver's seat. He said the driver came out of his vehicle and both continued to talk. Although Mr. E was approximately forty feet away from the individuals, he said he overheard Constable C say to Mr. B, "I'm gonna have to take you in." He said that at that point, the driver became belligerent while making hand gestures towards the member and that a physical altercation ensued. He described the man as being "wild" and because of the member's apparent difficulty to subdue the individual, Mr. E said he approached them to assist the RCMP member.
Mr. E said the man appeared irate and he believed the man was under the influence of some drug. He said he told the man to calm down, and that if he had not resisted, none of this would have happened. He said he took the man's legs in order for the member to get him on the ground, after which handcuffs were placed on the man's wrists.
Analysis
It is a well established legal principle that individuals are protected from arbitrary detention under section 9 of the Canadian Charter of Rights and Freedom. However, police officers may detain individuals where they are justified to do so under statute or common law. In this case, Constable C said he believed the vehicle driven by Mr. B could be stolen. To support his belief, he stated that it was his experience that vehicles in that area were generally stolen, and that the motel was located in a high drug use/prostitution area. The evidence revealed that this fact was well-known at the time (the judge in Mr. B's trial made a comment that the area, at the moment of the incident, was notoriously known as such),3 a fact that was also corroborated by Mr. E, the then owner of the motel.
The evidence revealed that Constable C did not have reasonable grounds to believe that Mr. B was driving a stolen vehicle. There were no indications that the vehicle was reported stolen, and Constable C did not establish that he had performed a background check of the vehicle's licence plate to confirm his intuition. Thus, the standard by which the Commission must assess Constable C's actions must rest on the rationale outlined in R. v. Simpson4 and in R v. Mann.5
Constable C articulated that he was in a high drug use/prostitution area, that it was around midnight and that it was his experience that most vehicles in the vicinity were stolen. Apart from this general explanation, Constable C failed to explain why he reasonably believed that the vehicle driven by Mr. B was stolen. As such, there was no objective evidence provided by Constable C that enabled the Commission to establish that another member, in the same predicament, would reasonably come to the same conclusion. The facts showed that Constable C intercepted Mr. B's vehicle because he subjectively believed the vehicle could have been stolen, but Constable C's intuition was not in itself sufficient to establish a reasonable suspicion in the totality of the circumstances.6 Accordingly, I find that Constable C was not in the lawful execution of his duty and that because of this, he arbitrarily detained Mr. B.
First Finding: Constable C was not in the lawful execution of his duty and consequently he arbitrarily detained Mr. B.
First Recommendation: That Constable C receive refresher training on the legal requirements (reasonable grounds vs. reasonable suspicion) and their implications relative to section 9 of the Canadian Charter of Rights Freedom.
Although Constable C arbitrarily detained Mr. B and was not in the lawful execution of his duty, did the evidence reveal that Constable C had reasonable grounds to arrest Mr. B for assaulting a police officer?
Section 265 of the Criminal Code establishes that a person commits an assault when he intentionally applies force to another person without the latter's consent.
The facts that Constable C reported to Crown counsel as well as the excerpts from Mr. B's trial suggested he had been assaulted by Mr. B. Constable C reported parking his vehicle behind Mr. B's van and exiting his vehicle. He said Mr. B "jumped" out of his van and approached him with his arms up and once he was in close proximity to him, Mr. B "lunged" at him. There was no indication in his report that a discussion had taken place between them, or that he had had an opportunity to explain to Mr. B why he had intercepted him or why he wanted to ask him questions. Based on his recollection of events, a reasonable person could conclude that Constable C had been assaulted and as such, a conclusion that Constable C had reasonable grounds to arrest Mr. B for such a charge would have been reasonable. However, given the facts before me, I am not convinced that the incident depicted by Constable C occurred in this manner.
Although there were inconsistencies between Mr. E's statement and Mr. B's recollection of events, both reported that a short discussion ensued prior to the physical altercation. Mr. E reported that he had witnessed only one event in which a civilian had engaged in a physical struggle with a police officer, and that this event occurred in approximately the same period of the year as the incident under review. He remembered Mr. B's van, the physical altercation, Constable C's request for police assistance and three of four police vehicles attending the scene shortly thereafter. These facts are sufficient to establish that Mr. E witnessed the incident and as such, sufficient weight must be afforded to the events as described by him.
It should also be noted that Mr. E's statement was substantially different than Constable C's, as he failed to corroborate the alleged assault committed by Mr. B. Mr. E reported that the RCMP member approached the vehicle and had sufficient time to engage in a discussion while Mr. B remained in the driver's seat. He then reported that Mr. B exited his vehicle and became belligerent only after being told by Constable C that he would be taken to the police station. The events as depicted by Mr. E showed an initial discussion between Mr. B and Constable C, the former becoming belligerent and then both men engaging in a physical confrontation. The evidence showed that Mr. B was arbitrarily detained by Constable C and that the events unfolded differently from what Constable C reported. In essence, there were no objective facts that could indicate that Mr. B rushed out of his vehicle to assault Constable C.
At common law, police duties include the preservation of peace, the prevention of crime, and the protection of life and property. The evidence showed that Mr. B's vehicle was not stolen, a crime had not been committed and there were no signs that Mr. B was disturbing the peace. Furthermore and contrary to what Constable C reported, Mr. E offered clear evidence that negated Constable C's narrative of events and by so doing, contradicted the grounds and motives Constable C had articulated in support of his decision to arrest Mr. B.
This said, I find that Constable C unlawfully arrested Mr. B for assaulting a police officer and because the arrest was unlawful, any demonstrable use of force would be excessive in the circumstances.
Second Finding: Constable C unlawfully arrested Mr. B for assaulting a police officer. Because the arrest was unlawful, any demonstrable use of force would be excessive.
Second Recommendation: That Constable C receive refresher training as to the grounds required to proceed with the arrest of an individual for assaulting a police officer.
Second Allegation: Constable C and unidentified members of the Kamloops RCMP Detachment used excessive force while arresting Mr. B. Specifically, they kicked him and punched him, deployed a CEW and utilized OC spray.
Evidence
a) Mr. B
Mr. B said he was handcuffed while on the ground and that two members grabbed him and lifted him to his feet. He said he felt a sting to his left shoulder and saw two blue lights on his left shoulder. He said that at that point, he knew he was being "tasered." He said he was then pepper-sprayed, that he went into shock and fell to the ground. Mr. B then said he was taken to the RCMP vehicle and placed in the back seat.
Mr. B provided pictures of his body taken soon after the incident. These pictures clearly conveyed that he had suffered certain injuries, and he consulted Dr. F five days after the incident. The medical report made mention of bruises to Mr. B's knees, shoulder, stomach and back, and these were clearly visible from the pictures he provided. The issue here is determining whether or not a CEW was used by the members of the RCMP and if so, whether the bruises apparent to Mr. B's body were consistent with and caused by such a use.
Mr. B said that at the moment of his arrest, he felt a sting on his shoulder, that he saw two blue lights and that because of this, he knew he was being tasered. Constable C on the other hand denied deploying a CEW on Mr. B and he said no such deployment was made while they were at the motel.
b) RCMP members
With the exception of the force used to perform the arrest, Constable C said no force was used, no CEW was deployed and no OC spray was utilized immediately following Mr. B's arrest.
Constable C said he requested police assistance during his struggle with Mr. B. Sergeant G, Corporals D and H, and Constables I, J, K and L all attended the scene. Notably, of these seven members who responded, only one made notes of the incident. The remaining six members, who included an experienced member of the Force who occupied the leadership position of Sergeant (Team Commander), failed to record the details of the incident and therefore were unable to recall any details of the incident presently under review when questioned by the public complaint investigator. However and notwithstanding the fact that all members but one failed to take proper notes, each said Mr. B was not subjected to a CEW or to OC spray.
c) Mr. E
Mr. E said he did not witness the deployment of a CEW, nor did he witness any use of OC spray on the man. He strongly denied that the member had used anything other than physical force to perform the arrest, and said the member had kept his composure throughout the incident. Mr. E said that three or four RCMP vehicles attended the scene after Constable C's request for police assistance, and that he engaged in a short discussion with one of the members. However, Mr. E was unequivocal: only physical force was used during Mr. B's arrest.
c) Ms. M7
In his Oral Reasons for Judgment, the trial judge summarized Ms. M's testimony. He reported that Ms. M testified that Mr. B attended her offices within hours of his release to show her the marks on his body allegedly left as a result of his arrest and detention. She said she had made a few investigative reports on the police's use of the CEW, and readily conceded that she was not an expert in CEW usage. However, she said the injuries sustained by Mr. B appeared to be consistent with the type of injuries she had seen after an individual had been subjected to a CEW. Pictures had been taken while Mr. B was at the newspaper offices, but these were purged and could not be reproduced. A letter to that effect, signed by Mr. N, was produced to the RCMP and was included in the relevant materials provided to the Commission.
d) The RCMP's Final Report
In its Final Report, the RCMP stated that the pictures and the specific bruises had been carefully analyzed by Constable O, an 18-year veteran of the RCMP and expert in the use of the CEW.8 Constable O concluded that the marks to Mr. B's body were inconsistent with markings traditionally left by the deployment of a CEW and because of this conclusion, the RCMP did not support Mr. B's allegation.
Analysis
RCMP policy9 specifically deals with members' notebooks and the policy is unequivocal: members are to properly compile, complete and maintain an accurate notebook. Notebooks are an important investigative tool that assists the member in any investigation while giving credibility to the statement he/she makes relative to a given incident. The fact that almost every member called to assist Constable C failed to take notes of such an event seriously hindered the credibility of their statements. More importantly, the fact that the majority of the members failed to take proper notes raised questions as to the seriousness members of the Kamloops RCMP Detachment afforded to this indispensable investigative tool. The trial judge in Mr. B's criminal proceedings also commented that very little evidence had been compiled and offered by the RCMP to support the member's version of events.10
Third Finding: Sergeant G, Corporal H, and Constables I, J, K and L failed to take contemporaneous notes of the details of the incident that transpired on June 30, 2004.
Third Recommendation: That the members involved in this matter be reminded of the imperative of making detailed, contemporaneous notes, and that Sergeant G be reminded that as a manager, he has an obligation to ensure that all members under this command take proper notes when involved in any incident.
All of the RCMP members present denied the use of OC spray on Mr. B, as did Mr. E. Furthermore, while Mr. B's shirt was taken from him, there were no indications within the cell records that Mr. B had been decontaminated when he was in RCMP custody.11 Once again, the lack of members' notes raises doubts as to the validity of the members' statement, and the only corroborating evidence that could have supported Mr. B's allegation was destroyed prior to Mr. B's release. Indeed, if Mr. B had been subjected to OC spray, this would have been apparent by the spray's residue on his shirt. Although the evidence was not clear on what happened, Mr. B said he was released without his shirt and he said he was told that his shirt had been thrown away.
Based on the aforementioned information and although the RCMP failed to account for Mr. B's shirt not being returned to him upon his release (a separate conclusion will cover this issue in a subsequent finding), there was no evidence to suggest that Mr. B was subjected to OC spray immediately after his arrest.
Fourth Finding: There was no evidence to suggest that Mr. B was subjected to OC spray immediately after his arrest.
It was Mr. B's statement that he was subjected to a CEW during his arrest. He said he was hit by a CEW at the height of his shoulder, that he felt a sting and that he saw two blue lights. He produced pictures that show discrepancies between the bruises to his stomach and the ones to his shoulder and knees, which he said were the result of a biking accident.12
The RCMP's policy on CEW usage clearly stated that the commander of each detachment 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 signed out the CEW. The CEW logs for 2005 were found and they revealed that Corporal D regularly signed one out; however, the CEW logs for 2004 could not be found. That is, the RCMP could not show which of the members of the Kamloops RCMP Detachment had signed out a CEW for the entire 2004 calendar year. This was in direct violation of the RCMP's policy and because of this, it was impossible to determine whether or not Corporal D, or any of the subject members, was carrying a CEW on the night of the incident.
Fifth Finding: Contrary to RCMP policy, the commander of the Kamloops RCMP Detachment failed to keep a control log for CEW usage for the entire 2004 calendar year.
Fourth Recommendation: That all of the subject members be provided with operational guidance with respect to the appropriate reporting of CEW usage.
It is impossible to determine whether or not any of the RCMP members carried a CEW on the night of the incident, and for that matter whether or not Mr. B was subjected to its use. On the one hand, it was Mr. B's evidence that he saw blue lights on his shoulder and because of this, he said he knew he was being subjected to the use of a CEW. He produced pictures that depicted bruises to his torso, shoulder and abdomen areas, which added weight to the validity of his allegation. On the other hand, the RCMP almost exclusively relied on the appraisal of Mr. B's photographs by an "expert" to conclude that the bruises to his shoulder/abdomen were inconsistent with marks left by a CEW, and yet the RCMP could not account for any CEW usage by any member of the Kamloops RCMP Detachment for the entire 2004 calendar year. Although I have serious concerns relative to the adequacy of the RCMP's findings, it is worth noting that CEWs do not emit blue lights when they are used.
This said, I take note of the numerous inconsistencies in the evidence provided to the Commission and a comment relative to the adequacy of the RCMP's evidence is made at the end of this report. Concerning the present allegation and given the foregoing, it is impossible to establish whether or not Mr. B was subjected to the use of a CEW shortly after his arrest.
Sixth Finding: There is insufficient evidence to corroborate Mr. B's allegation.
Third Allegation: Mr. B was not read his Charter rights and an unidentified member threatened him and choked him while he was in the police vehicle.
Evidence
a) Mr. B
Mr. B said he was placed in a police vehicle where after a few minutes, a member (who allegedly had short blonde hair) opened the door, grabbed his shoulder and throat, shook him and threatened him.
b) Constable C
Constable C said that once Mr. B was placed under arrest, he was taken by other members and had limited dealings with him until 4:00 a.m. the next morning.
c) Constable I
Constable I, who was the first on the scene, said a few people had gathered around Mr. B by the time he arrived. Dispatch confirmed that Constable I was the first member to arrive, and he said he did not see any member grab or threaten Mr. B.
d) Constable J
Constable J said once he arrived on the scene, Mr. B had been placed under arrest. He said he grabbed Mr. B and brought him to the police vehicle where he made a cursory search of his person. He said he placed his hands in the pockets of Mr. B's jacket and that an uncapped needle slashed his gloves (but did not puncture his skin). He failed to notice anything otherwise that was irregular in the circumstances.
e) Corporal D
Corporal D was the only member who made notes that evening. In his notes, he wrote that he read the Charter rights to Mr. B before placing him in his vehicle and that he drove Mr. B to the detachment. Between the moment he read Mr. B his Charter rights and the time he drove him to the detachment, Corporal D failed to notice anything irregular in the circumstances.
Analysis
The evidence failed to show any corroborating evidence that could support Mr. B's allegation. Given this, I conclude there is insufficient evidence to establish that while he was sitting in the police vehicle, Mr. B was grabbed by the throat, shaken and threatened by an unidentified member of the Kamloops RCMP Detachment. However, given Corporal D's notes, I am satisfied that Mr. B was read his Charter rights subsequent to his arrest.
Seventh Finding: There is insufficient evidence to establish that while he was sitting in the police vehicle, Mr. B was grabbed by the throat, shaken and threatened by an unidentified member of the Kamloops RCMP Detachment. However, I am satisfied that Mr. B was read his Charter rights soon after his arrest.
Fourth Allegation: Mr. B was brought to the Kamloops Detachment and while sitting handcuffed in the police vehicle, a CEW was deployed to his stomach on two occasions. He was dragged out of the vehicle where he was kicked and punched several times by unidentified members.
Evidence
a) Mr. B
Mr. B said he was brought to the Kamloops RCMP Detachment. He said the members parked the vehicle in the secured bay and left him handcuffed and alone in the back of the police vehicle for several minutes. After this, he said a member (who appeared to be a supervisor) opened the door and deployed a CEW to his stomach on two occasions and dragged him out of the vehicle. Mr. B said several members kicked and punched him while he was on the ground, and an unidentified member bent the fingers of his hand. For the reasons outlined below, I find Mr. B's evidence relative to this allegation as being the most credible in the circumstances.
b) Medical Report provided by Mr. B
The medical report produced by Dr. F13 noted that Mr. B appeared to have a sprained right wrist and also reported the injuries Mr. B had to his lower abdomen; these were reported as being the result of a CEW.
c) Constable L & Corporal D
Constable L recalled dragging Mr. B out of the vehicle, but said he could not remember anything else that had transpired from that moment on. Corporal D noted that both he and Constable L struggled with Mr. B in the vehicle, but when interviewed on October 23, 2008, he could not offer any explanation regarding Mr. B's injuries, or how they ultimately got him to comply with their directions. Corporal D said he did not deploy a CEW, or kick or punch Mr. B.
d) Video recording
It is worth noting that in normal circumstances, the Commission would have benefited from viewing the recordings of all the activities in the secured bay and jail areas of the detachment. However, as Ms. A's complaint was lodged more than one year after the incident, this video evidence was unfortunately purged.14
Analysis
There is a possibility that the events that occurred in the secured bay of the detachment unfolded as described by Mr. B. He bore markings to his stomach, which appear to be consistent with the type of injuries one would sustain if subjected to the deployment of a CEW, and both members said they struggled with him in the police vehicle and that they had to drag him out.
The fact that one member said he dragged Mr. B out of the police vehicle is insufficient, in itself, to conclude that excessive force was used against Mr. B while he was at the detachment. Without any corroborating evidence, it is difficult to determine, on the balance of probabilities, whether or not the force used by Constable L and Corporal D was improper and excessive in the circumstances.
Eighth Finding: Without corroborating evidence, it is difficult to determine, on the balance of probabilities, whether or not the force used by Constable L and Corporal D was improper in the circumstances.
Fifth Allegation: While in RCMP custody, members of the Kamloops RCMP Detachment left Mr. B in the nude for four to six hours, physically abused him and failed to provide him with medical attention.
Mr. B said he was taken to the booking area, where further physical and verbal abuse took place. He said his clothes were taken away from him and he was placed naked in cells (he said he only had his socks), and said he stayed there between four and six hours. While in cells, he said he passed out a few times, during which unidentified members allegedly approached him, grabbed his head and banged it against the cell bars.
The jail log books showed that Mr. B was lodged in cells at 12:30 a.m. on June 30, 2004 by Sergeant G, Corporal D and Constable L. At 1:08 a.m., he was removed from his cell by Corporal D who advised him of his right to counsel and permitted him to contact legal counsel. At 1:20 a.m., he was returned to his cell. Two hours later, he was removed from his cell by Constable C, who took his photo and fingerprints. Ten minutes later, he was returned to his cell and at 11:15 a.m., he was released on a Promise to Appear for assaulting a police officer.
The prisoner logs were sufficiently detailed to demonstrate that Mr. B was continually monitored while he was in cells. It is reasonable to assume that given these details, had Mr. B requested to be provided with medical attention, such attention would have been given to him. In light of the foregoing, I am satisfied that this allegation is unsubstantiated.
Ninth Finding: While in RCMP custody, Mr. B was not left in the nude for six hours nor was he physically abused. Members of the Kamloops RCMP Detachment did not fail to provide him with needed medical attention.
Sixth Allegation: When he was booked in cells, the RCMP took money that Mr. B had on his person. When Mr. B was released, his money, along with his shirt, was not returned to him.
Mr. B said money was taken from him when he was booked in cells and that when he was released his money and his shirt were not given back to him. This evidence, along with the evidence provided in the second allegation, is the least credible in the circumstances.
The prisoner report indicated that cigarettes, a chain, a string ring, a shirt, ID, a jacket, shoes and a pager were taken from Mr. B when he was booked. There were no indications that money was taken from Mr. B.
The facts showed that Mr. B was released in his mother's care and that she complained on his behalf to the Commission. It should be noted that there is no mention of this allegation in the complaint submitted to the Commission. Because of the foregoing and although doubts prevail relative to the issue of Mr. B's shirt, given the lack of corroborating evidence, there is no evidence to suggest the RCMP failed to return money owned by Mr. B.
Tenth Finding: There is no evidence to suggest that the RCMP failed to return money owned by Mr. B.
Eleventh Finding: Members of the Kamloops RCMP Detachment failed to properly account for Mr. B's shirt and failed to return it to him upon his release.
Fifth Recommendation: That a directive be issued to members of the Kamloops RCMP Detachment reminding them to properly account for all property that is seized following an arrest and that these items be returned to their rightful owner upon their release from custody.
Seventh Allegation: Constable C falsely reported to the Crown that he did not see any injuries on Mr. B.
Constable C said he had no dealings with Mr. B during his booking procedure, but said that at approximately 4:00 a.m., he took Mr. B from the cell to have him fingerprinted and photographed. In his report to Crown counsel, Constable C made no mention of Mr. B's physical appearance but rather described the accused as being highly impaired by drugs.15 The only time when Constable C commented on Mr. B's injuries was during the trial, at which time he testified that he had failed to notice any significant injuries to Mr. B (other than the ones that were apparent to his face). The RCMP, in its Final Report, concluded that these observations were Constable C's own personal observations and as such, were not to be disputed. In fact, the evidence showed that Constable C made these observations in a court of law and as such, was subject to cross-examination by defence counsel. There was nothing false about his personal observations nor did he attempt to mislead the court in its assessment of the charges against Mr. B. Given the foregoing, I am satisfied that this allegation is unsubstantiated.
Twelfth Finding: Constable C did not falsely report to the Crown that he had failed to see any injuries on Mr. B.
Comment on the Quality of the Public Complaint Investigation
Serious allegations were raised in this complaint about the use of excessive force by several members of the Kamloops RCMP Detachment. The most serious allegation brought forth by Mr. B was the allegation that a CEW had been discharged twice to his abdomen while he was handcuffed, in the back of a RCMP vehicle, at the detachment. The evidence revealed that not all potential witnesses were interviewed and not all the relevant materials were produced. A professional investigation should have thoroughly examined in a credible manner the validity of all the allegations made by the complainant, and the conclusions drawn by the RCMP should have been properly outlined in the RCMP's Final Report.
Thirteenth Finding: The public complaint investigation was inadequate, it did not address all of the allegations made by the complainant and the RCMP failed to communicate these in its Final Report.
Police officers are trained in interviewing techniques and analyzing information. They are also trained 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, be 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 this, I will provide a copy of this report to the public complaint investigator as well as to 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.
Sixth Recommendation: 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.
Kamloops Use of Force Review
Following this incident and as a result of the concerns raised by Judge Gordon, the RCMP and the Commission jointly engaged in an administrative review of the RCMP's practices at the Kamloops Detachment with respect to both the appropriate use of force as well as the handling of public complaints related to such use of force. The review consisted of an analysis of a number of public complaints lodged between 2004 and 2008.
The review failed to produce any major systemic problems that persist at the Kamloops Detachment but did identify corrective actions taken by RCMP leadership to address concerns regarding the conduct of RCMP members in the performance of their duties as well as the investigation of public complaints. Such actions will lend much credibility to the public complaint process and in turn enhance public confidence in the RCMP.
Pursuant to paragraph 45.42(3)(a) of the RCMP Act, I respectfully submit my Interim Report.
_____________________
Paul E. Kennedy
Chair
1 The trial judge mentioned that it was Constable Cs experience that a fair number of vehicles in the vicinity were stolen.
2 An accurate depiction of the codes used by Constable C in his communications with dispatch is adequately conveyed in the RCMP's Final Report. The RCMP also explained which members were called to the scene, their individual ranks and the type of vehicles utilized to transport Mr. B to the Kamloops RCMP Detachment.
3 Paragraph 3 of the Oral Reasons of Judgment, February 6, 2006.
4 (1993), 20 C.R. (4th) 1, 79 C.C.C. (3d) 482.
5 The police officer must demonstrate that his reasonable suspicion is not based on his own intuition, but rather on specific facts (which are to be viewed objectively). The basis of such an investigative detention was referred by the courts as "articulable cause" or "reasonable grounds to detain." See R v. Mann [2004] 3 S.C.R. 59 (S.C.C.).
6 It is worth noting that the trial judge had a doubt as to the whether or not Constable C was in the lawful execution of his duty at the moment of Mr. B's arrest.
7 A reporter with a Kamloops newspaper.
8 He is certified as a Use of Force and Conducted Energy Weapon instructor and he has instructed police officers in Canada, the United States and the Middle East.
9 Operational Manual, Section II.7, sub-section G.
10 Paragraph 27 of the transcript of the Oral Reasons for Judgment rendered on February 6, 2006 states: "In his remarks to the court, Mr. P, for the defence, leaves we with a number of unsettling questions. The first of those is, why did the court not get to hear from any of the other officers involved in dealing with Mr. B that night? Why were no videos placed before the court of what took place in the police bay or the book-in centre at the police detachment or of whatever may or may not have happened while Mr. B was in police cells."
11 Decontamination of individuals who are subjected to OC spray is common in police practice.
12 I also noted that during in his court testimony, Mr. B said he was handicapped and that he had problems with his knees as a result of a prior accident. The transcript was unclear, but he testified that his knees had been burnt by cement. These discrepancies further point to the lack of credibility Mr. B had in reporting what had transpired at the motel.
13 Dr. F was consulted by Mr. B five days after his release from RCMP custody.
14 These recordings are archived for a period of one year as per the RCMP's policy and after the prescribed deadline, the video recordings are reused.
15 He described Mr. B as having "eyes staring straight ahead, erratic movements of arms and head."