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

RCMP Act Paragraph 45.42(3)(a)

Vetted version for posting

March 24, 2009

Overview

On July 25, 2008 at approximately 1:30 a.m., Constable B of the Codiac Regional RCMP Detachment in Moncton, New Brunswick arrived outside a pub in response to several
9-1-1 calls that had been made by Ms. A, including one in which she alleged that she had been threatened by a bouncer at the pub. Ms. A is well known to the members of the Codiac RCMP Detachment as well as to 9-1-1 operators for making nuisance calls and unfounded complaints. She had previously been told not to call 9-1-1, yet she continued to do so.

Upon her arrival at the scene, Constable B saw Ms. A walking towards her from the rear of the building. Ms. A approached the police vehicle and told Constable B that she had been assaulted by a bouncer at the rear doors to the bar.

Constable B immediately advised Ms. A that she was under arrest for public mischief and breach of probation. Ms. A began to walk away from Constable B and the latter grabbed Ms. A by the wrists and told her to stop resisting. Ms. A continued to pull away from Constable B and said that she was not going to the police car. This attracted the attention of pub staff C and D, who stood by while Constable B gained control of Ms. A. The latter was handcuffed, placed in the police vehicle and taken to the detachment. Constable B then interviewed Ms. A at the detachment and decided to charge her with public mischief¹ and breach of probation.² Later that morning, Ms. A was released from police custody on a promise to appear.

On August 22, 2008, Ms. A complained to the Commission about the conduct of Constable B. The complaint alleges that on July 25, 2008, Constable B:

• 1) Arrested Ms. A without cause or need;
• 2) Used excessive force when applying restraints to Ms. A;
• 3) Failed to advise Ms. A of the reason for her arrest and of her Charter rights;
• 4) Joked over the police radio that she was going to take Ms. A on a "joy ride"; and
• 5) Detained her for no reason and without authority and need.

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 the current case, the Commissioner's Final Report, dated December 3, 2008, did not support the allegations.

Ms. A was not satisfied with the RCMP's disposition of her complaint. The Commission received Ms. A's request for review on February 23, 2009. The Commission received the investigation documents from the RCMP on February 27, 2009 and on May 14, 2009.

For the reasons outlined below, I find that the arrest and subsequent detention were unlawful and that the force used during the arrest, although minimal, was excessive by virtue of the unlawful arrest. I also find that the other allegations made in the complaint are unsupported by the evidence.

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.

During the complaint review the Commission requested that the RCMP conduct a further investigation into the complaint pursuant to paragraph 45.42(3)(a) of the Act. The purpose of the further investigation was to obtain additional information concerning Constable B's version of the complaint incident and also her grounds for arresting Ms. A. Constable B declined to provide a statement³ in response to the Commission's request.

My findings, as indicated below, are based on a careful examination of the investigation documents. These include the public complaint investigation report as completed by Corporal E, the relevant occurrence reports and supplementary reports documenting Constable B's version of the complaint incident as well as those of Constable F, Constable G and Corporal H. The investigation documents also include a summary of Ms. A's statement, incident reports completed by staff at the pub, the Moncton Hospital Emergency Report dated July 27, 2008, the record of Ms. A's 9-1-1 telephone calls and the materials that Ms. A has provided in support of her complaint.

First Allegation: Constable B arrested Ms. A without cause or need.

As previously indicated, Ms. A is well known to the members of the Codiac Regional RCMP Detachment. Prior to the day of her arrest Ms. A had made several complaints regarding matters ranging from people breaking into her apartment and moving items around, to people watching her and abducting her adult son. Members of the Codiac Regional Detachment are aware that Ms. A has a history of mental health issues and that she also has a history of making false reports to the police.

At approximately 1:00 a.m. on the date in question, Ms. A attended the Codiac Regional Detachment to speak with a member and provide the RCMP with written statements. Corporal  H spoke with her about her complaints and asked her whether she was going to see her doctor. He told her that she should tell her doctor that she calls the RCMP every day. Corporal H also told her that he was not going to take any action on her complaints, as they had no basis in fact. He took Ms. A's statements and told her that these would be placed on file, but would not be investigated.

Approximately thirty minutes later, Constable B received a call from a 9-1-1 telecommunications operator advising that Ms. A had been abusing the police phone line by frequently calling. She had called to report people using marihuana outside the bar and also called to report that a bouncer at the bar had threatened her. In response to that call, Constable B attended the front parking lot of the pub.

In her complaint, Ms. A alleges that Constable B arrested her "without cause or need." During the public complaint investigation, Constable B spoke with Corporal E, but did not provide a formal statement. Consequently, the Commission requested that the RCMP obtain a detailed statement from Constable B outlining her actions. She declined to provide a statement. Therefore, in assessing the appropriateness of the arrest, I have relied primarily on the information that Constable B recorded in the General Occurrence Report dated July 25, 2008 and in a Supplementary Occurrence Report dated October 26, 2008. Further, the Commission requested any notebook entries that Constable B may have made, but none were provided in response to that request.

Constable B indicates that upon her arrival at the scene, Ms. A approached the police vehicle and told her that she had been assaulted by a bouncer at the rear doors of the pub. Ms. A pointed to her right shoulder with her left hand when she said this. Constable B states that it was at that point that she told Ms. A that she was under arrest for public mischief and breach of probation. After Ms. A was placed in the police vehicle, Constable B spoke with Mr. C, who identified himself as the bouncer at the pub. He denied touching or threatening Ms. A.

The RCMP's Final Report of December 3, 2008 states that "[b]ecause Constable B had reasonable and probable grounds to believe that you knowingly made a false and misleading complaint of assault, thus causing the police to enter into an investigation, the officer arrested you for Public Mischief." My view is that the investigation documents do not demonstrate that Constable B had reasonable and probable grounds to believe that Ms. A had made a false statement at the time of the arrest. If Constable B did have the necessary grounds, she did not articulate these in notebook entries, or in the Occurrence Report.

There is no information before the Commission that Constable B spoke with any of the bouncers or other potential witnesses about the alleged assault until after she arrested Ms. A. Rather, it would appear that she prejudged the veracity of Ms. A's complaint based upon her previous interactions with her. Constable B may have had a suspicion based upon her prior dealings with Ms. A that her assault complaint was false, but she did not confirm these suspicions prior to the arrest. Based on my review of the available information, Constable B could not have formulated the reasonable grounds that were necessary for the arrest prior to conducting further investigation. Therefore, in the circumstances, the arrest was improper.

I note that shortly after the arrest, Constable B spoke with Mr. C and determined that the assault complaint was false. However, that determination ought to have been made prior to the arrest. In essence, the arrest was premature. In sum, it would have been more appropriate for her to gather more information prior to effecting the arrest. If that had been the case, the arrest would likely have been proper and would have met the requirements of subsection 495(2) of the Criminal Code, as Constable B found Ms. A committing the offence of public mischief and arrested her to prevent the continuation of the offence. In addition, following the arrest, Constable B advised Ms. A of her Charter rights and allowed her to exercise those rights.

Finding: Constable B's arrest of Ms. A was improper.

Second Allegation: Constable B used excessive force when applying restraints to Ms. A.

The fact that some force was used during the arrest is not in dispute. In her complaint, Ms. A states that upon her arrest, Constable B grabbed her arms, twisted her left arm and handcuffed her. She states that she sustained nerve damage and may require further treatment for her left hand. The Moncton Hospital Emergency Record confirms that Ms. A attended the hospital on July 27, 2008 with complaints of soreness and swelling in her shoulders, left hand and wrist.

Constable B indicates that when she informed Ms. A that she was under arrest, the latter began to step away from the police car. Constable B then grabbed her by the wrist and told her to stop resisting. Ms. A pulled away and said that she was not going into the police car. Constable B indicates that Mr. C, the bouncer at the pub, and the manager, Mr. D, approached and stood near her as she dealt with Ms. A. According to Constable B, she was able to verbally calm Ms. A by telling her to stop pulling away and comply. Ms. A was then handcuffed without further resisting and placed in the back of the police vehicle.

According to the public complaint investigator, C and D stated that Corporal B did not use excessive force during the Ms. A's arrest.

The information before the Commission indicates that only a minimal amount of force was used during the arrest (essentially limited to being handcuffed and placed in the police vehicle). Ms. A did not resist to the point where Constable B was required to request assistance from C and D. Accordingly, the force used during the arrest was excessive solely by virtue of the inappropriate arrest. Under the circumstances, I do not believe that this allegation warrants a recommendation.

Finding: The force used by Constable B during the arrest was excessive solely by virtue of the improper arrest.

Third Allegation: Constable B failed to advise Ms. A of the reason for her arrest and of her Charter rights.

In her complaint, Ms. A states that Constable B immediately told her that she was under arrest, but did not read her rights. Ms. A indicates that after she was placed in the police vehicle, Constable B scrolled down the police computer and asked whether she knew what mischief was. Ms. A indicates that she was permitted to speak with a lawyer at the detachment.

According to the investigation documents, Constable B states that she read Ms. A her right to counsel and police warning and that later, at the detachment, she provided Ms. A with the opportunity to contact legal aid and speak with a lawyer.

In the Occurrence Report dated July 25, 2008, Constable B indicates that at 1:33 a.m., after Ms. A was placed in the vehicle and after she spoke with Mr. C, she read Ms. A her right to counsel in English. The latter understood and said that she would require a phone book.

In a Supplementary Occurrence Report dated October 26, 2008, Constable B indicates that she read Ms. A her rights upon her arrest and later, at the detachment, took a warned statement from her.

Based on my review of the investigation documents, I am satisfied that Constable B advised Ms. A of her rights.

Finding: Constable B advised Ms. A of her rights.

Fourth Allegation: Constable B joked over the police radio that she was going to take Ms. A on a "joy ride."

Constable B denies that she made a comment about taking Ms. A on a "joy ride." The issue as to whether Constable B made this comment essentially boils down to Ms. A's word against that of Constable B and what I believe most likely happened.

Under the circumstances, I cannot see why Constable B would have made such a comment, and her intention would have been to arrive at the detachment as soon as possible so that she could proceed with her investigation.

Based on my review of the investigation documents, I prefer Constable B's version of events.

Finding: Constable B did not make a comment to the effect that she was taking Ms. A on a "joy ride."

Fifth Allegation: Constable B detained Ms. A for no reason and without authority and need.

Although I have found that the initial arrest of Ms. A was improper, the investigation documents indicate that the subsequent detention was justified.

After Constable B placed Ms. A in the police vehicle, she furthered the investigation and gained sufficient information that warranted Ms. A's arrest and detention. Constable B remedied the initial arrest by gathering sufficient information to formulate reasonable and probable grounds to believe that Ms. A had committed the offence of public mischief and by advising Ms. A of her rights. She carried out her investigation and thereafter released Ms. A on a Promise to Appear.

Ms. A's detention, until her release at 5:34 a.m., was justified.

Finding: The detention was justified and appropriate in the circumstances.

Comment

The Commission recognizes the challenges faced by members of the RCMP and the resource demands associated thereto when dealing with people who make frequent requests for police services which on their face do not appear to be supported by the facts. However, it is incumbent on the RCMP to ensure that the veracity of each complaint is assessed on the facts and not based solely on prior events. Consequently, the leadership of the Codiac Regional Detachment may wish to consider implementing protocols for dealing with frequent complainants. As an example of a best practice, I have included a copy of my report into a similar matter where the members of another detachment implemented a protocol to address the workload impacts associated with a particular complainant. This approach may prove to be suitable in Codiac as well.

Having considered the complaint, I hereby submit my Interim Report in accordance with paragraph 45.42(3)(a) of the RCMP Act.

_____________________
Paul E. Kennedy
Chair

1 Contrary to section 140 of the Criminal Code. "Every one commits public mischief who, with intent to mislead, causes a peace officer to enter on or continue an investigation by (a) making a false statement that accuses some other person of having committed an offence;(b) doing anything intended to cause some other person to be suspected of having committed an offence that the other person has not committed, or to divert suspicion from himself;(c) reporting that an offence has been committed when it has not been committed; or (d) reporting or in any other way making it known or causing it to be made known that he or some other person has died when he or that other person has not died."

2 At the time of this incident Ms. A was bound by a 12-month Probation Order issued on August 28, 2007. One of the conditions of that Order was to "Keep the peace and be of good behaviour."

3 RCMP members are not required to provide statements under Part VII of the Act.