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

RCMP Act Paragraph 45.42(3)(a)

Vetted version for posting

June 12, 2009

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Synopsis

This review arose from the RCMP's disposition of a complaint filed by Mr. Thomas Engel on behalf of Mr. A; his wife, Ms. B; his daughter, Ms. C; and his daughter's boyfriend, Mr. D. The complainants allege that Constable E, Constable F, Constable G, Constable H and Constable I, each of the High Level RCMP Detachment in Alberta abused their authority and used excessive and unnecessary force towards attendees of a New Year's Eve party on January 1, 2005.

The RCMP investigated the complaint and determined that no criminal charges were pending against the members, and that the allegations would be examined through the civil litigation process, as the complainants had filed a Statement of Claim echoing their public complaint allegations.

I am not satisfied that the members in question acted appropriately in their dealings with the complainants.

Overview of the Process

On November 1, 2006, Mr. Engel on behalf of the complainants complained directly to the RCMP regarding the actions of Constable E, Constable F, Constable G, Constable H and Constable I.

Pursuant to the RCMP Act (the Act), the complaint was investigated by the RCMP. Consistent with the Act, on completion of the investigation, the RCMP Commissioner's delegate sent his Final Report to the complainants summarizing the results of the investigation and any action taken to resolve the complaint.

The RCMP's Final Report, dated December 9, 2008 did not support the complainants' allegations.

The complainants were not satisfied with the RCMP's disposition of their complaint. The Commission received their request for review on February 25, 2009. The Commission received from the RCMP the investigation documents relating to this file on April 2, 2009.

Commission's Review of the Complaint

It is important to note that the Commission for Public Complaints Against the RCMP ("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 the 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 below are based on a careful review of Mr. Engel's complaint, as well as of the RCMP's investigational materials and Final Report, and the relevant court transcripts.

Facts

On December 31, 2004, Ms. J, the manager of a bowling centre had a party for a number of invited friends at the bowling centre. The party began early in the evening and continued into the early hours of January 1, 2005. The bowling centre was the holder of a Class B liquor licence, which provided that alcohol could be served until 2 a.m. and consumed until 3 a.m. The licence did not contain a restriction on the length of time individuals could remain in the licensed establishment.

Shortly after 3 a.m., Constable F and Constable E attended the bowling centre and observed partygoers consuming what appeared to be alcoholic beverages. The members informed Ms. J that the partygoers had fifteen minutes to leave, and that they would return shortly to ensure that directions were being followed. It should be noted that peace officers are considered inspectors for the purposes of Alberta's Liquor and Gaming Act.

At approximately 3:45 a.m., Constable F and Constable E returned to the bowling centre, accompanied by Constable G, Constable H, Constable I, and Special Constable K. The members observed several patrons drinking what they believed to be alcoholic beverages, and indicated that everyone would have to leave the premises. The members were met with protests from the partygoers, who resisted leaving the establishment. At that time, the temperature was approximately -34 degrees Celsius. Mr. D became verbally belligerent and was escorted out of the bowling centre by Constable G and Constable I in order that he could be taken home. Ms. C became very upset at Mr. D's removal, and Mr. A then interceded. Mr. A began to aggressively question the members, in particular Constable E, and then retreated into the establishment. Constable F, Constable H and Constable G then entered The bowling centre and forcibly removed Mr. A, putting him to the ground once outside, where a scuffle ensued. Mr. A suffered two loose teeth and numerous contusions and lacerations, while Constable F suffered a bleeding ear. Constable I and Constable G then transported Mr. A and his wife to the hospital, where Mr. A was treated and released that morning. Mr. A was later charged with assaulting a peace officer and refusing to leave licensed premises. The charges were eventually withdrawn.

Analysis

At the outset, it should be noted that in the context of carrying out investigations police officers are empowered to make decisions and that this necessarily involves the exercise of discretion.  In a complaint such as this one, where the exercise of judgment or discretion is at issue, the question for the Commission is not whether another person would have acted differently.  Rather, the issue is whether that judgment or discretion can be said to have been exercised unreasonably or on the basis of any improper consideration. 

The Evidence of the Party Guests

Mr. A

Mr. A stated that he arrived at the bowling centre at approximately 6:00 p.m. for a private party. He stated that at approximately 3:00 a.m., the members had told the partygoers that the party had to be shut down within fifteen minutes. At that point, he related that Ms. J and her daughter, Ms. L, who were manning the bar, started cleaning the establishment and removing drinks. Mr. A noted that his wife was the designated driver, and had been taking carloads of guests home, as it was very cold out.

Mr. A recalled that his daughter approached him, crying, as he stood at the pool table with friends, and informed him that Mr. D had been arrested and that she did not know why. Mr. A related that he then tried to go outside, but Constable E stopped him, pushing him back with her arm, and told him that he could not go outside. According to Mr. A, he then returned to the pool table area, where he sat for five to ten minutes until three to four members approached him. Mr. A stated that he was "grabbed and pushed and just thrown around the place, against the speaker" and then taken outside. He recalled that Constable F punched him in the face on the way outside. Mr. A related that he did not say anything to the members, and the members did not say anything to him.

Mr. A stated that once outside, he was "basically beaten to the ground by just the amount of them." He recalled the members, Constable F in particular, kneeling on him, punching and kicking him. He stated that when he was first brought to the ground, his teeth were intact, but Constable F then kicked him in the mouth. Mr. A recalled that he never tried to fight back, and stated that he was not intoxicated. However, later in his statement, Mr. A indicated that he would not let the members handcuff him, and that he was trying to keep his arms underneath him. According to Mr. A, his wife then arrived on the scene and told Constable I, with whom they were acquainted in an unofficial capacity, to release him. Mr. A related that at that point, the members let him get up off the ground, but he knew that his teeth were broken. Mr. A indicated that he and his wife were then given a ride to the hospital in Constable I's police vehicle, at their request. Mr. A was at the hospital for 30 to 45 minutes.

Ms. B

Ms. B stated that on the night of the party, she was the designated driver. She recalled that two members came in and informed Ms. L, who was tending bar, that they would give the partygoers fifteen minutes to clean up. According to Ms. B, she and Ms. J, as well as Ms. L, started clearing the tables. Ms. B then left in order to drive a group of partygoers home. She stated that she returned approximately ten minutes later to find a group of people in the bowling centre parking lot. Ms. B stated that upon exiting her vehicle, one of the partygoers, Ms. M, shouted at her that Mr. A's arm was broken.

Ms. B stated that she then ran towards the scene, and saw Mr. A face down in the snow with three members on top of him. Ms. B indicated that there was "blood all over," that Constable I had one knee on Mr. A's back, that "a Native cop with glasses" was holding Mr. A's feet, and that "an East Indian police officer"¹ was punching Mr. A's head area. According to Ms. A, she started to shout, asking what the members were doing, and was told by Constable E that Mr. A had assaulted or pushed her. Ms. A related that she then asked Constable I to let her talk to Mr. A, and he acquiesced. She related that she then told Mr. A to get into the police vehicle and told the members to take them to the hospital. Ms. A stated that Mr. A was not intoxicated.

Ms. A added that Ms. L was trying to take pictures when Mr. A was on the ground, and "the young police officer" tried to grab her. Ms. A stated that she shouted at him not to touch her, as she was pregnant. According to Ms. A, the member told her that he was not going to touch her.

Mr. D

Mr. D stated that two members came into the bowling centre at some point and began talking to Ms. J, Ms. L, Ms. C and "JD." Mr. D stated that he did not know what they were talking about, and that approximately six members then came in approximately ten to fifteen minutes later, yelling and trying to kick the partygoers out. According to Mr. D, Ms. B had not returned from driving several people home, and no cabs were available that night. Mr. D related that he and others tried to explain to the members that they were waiting for a ride, that it was -40 degrees Celsius, and that they did not have warm clothes or jackets, but the members wanted them to leave immediately. At that time, Mr. D recalled that no one was drinking liquor, although Ms. L was drinking out of a pitcher of pop.

Mr. D stated that he was sitting near the front entrance of the bowling centre, and that Ms. N sat beside him. He related that Constable I yelled at them to get out, and Ms. N, who was neither loud nor rude, told him that they were trying to call a cab. According to Mr. D, Constable I went up to Ms. N and told her to shut up, using profane language. Mr. D indicated that he told Constable I that he should not speak to someone like that, and the next thing he knew, he was grabbed by the neck and pushed out the entrance doors and against a police vehicle. Mr. D stated that he was searched, and that he had approximately $12 and two nutritional supplements in his pockets. Mr. D related that Constable I asked if the supplements were drugs, and stated, "you're gonna have fun in the drunk tank tonight." According to Mr. D, his belongings were never returned to him.

Mr. D stated that he was not intoxicated, and had consumed six or seven drinks over the evening.

Ms. C.

Ms. C. stated that Constable E and another member came into the bowling centre at a certain point and told the partygoers that they had fifteen minutes to leave the premises. Ms. C indicated that the partygoers said that they could not find cabs, and the members responded that they did not care how they got home, but they had to leave in fifteen minutes. According to Ms. C., the members returned fifteen to twenty minutes later, telling them that they had to leave. Ms. C stated that Ms. N had been attempting to call for a cab, and repeatedly attempted to show one of the members her cell phone. Ms. C stated that the member told her to "shut the "f" up." Ms. C related that Mr. D told the member not to talk to Ms. N like that, and that that member and Constable I proceeded to grab Mr. D and throw him against a police vehicle.

Ms. C stated that once Mr. D was against the vehicle, Constable I searched him and took some money and some dietary supplements from Mr. D's pockets, stating, "you're gonna have fun in the drunk tank tonight." Ms. C stated that she became upset, and told her father and several other people what had happened. According to C, Mr. A "got upset" and opened the entrance door of the bowling centre, "yelling at [the members]" saying to let Mr. D go, that he had not done anything wrong, and asking why he was being arrested. Ms. C stated that the members began threatening her father, telling him to go back inside or he would get in trouble. Ms. C related that at that point, Mr. A returned inside and sat down.

Ms. C indicated that five minutes later, two members came running in and grabbed Mr. A, one at each arm, and started dragging him towards the door. She stated that they dragged him outside. Ms. C stated that when she got outside, the members were on top of Mr. A, who was face down on the ground, and there was blood on the ground. Ms. C stated that four members were standing around her father, kicking him and pushing his face into the ground. She further specified that the "tall east Indian guy" had his hand on Mr. A's neck and was holding him with his face into the ground, and that other members were on top of Mr. A. Ms. C. described the members as "trying to hold [Mr. A] down." She noted that the "east Indian" member made a kicking motion towards her. Ms. C specified that her mother had already arrived on the scene by the time she went outside. According to Ms. C her mother spoke to the members and Constable I got the other members to let Mr. A up. Ms. C stated that when Mr. A stood, there was blood all over his face and his tooth was clearly gone or hanging by a thread. Ms. C related that her mother and father proceeded to the hospital in a police vehicle.

Ms. C also noted that one of the members had tried to take Ms. L's digital camera as she took pictures of the incident.

Ms. J

Ms. J provided a written statement. She stated that members arrived at the bowling centre at approximately 2:45 a.m. and told her to ensure that all alcohol was consumed within fifteen minutes and bottles were picked up on all the tables. She related that at 3:10 a.m., five members arrived, at which point all alcohol and bottles were gone. According to Ms. J, there was a jug of soda left on the counter, which was being consumed by her daughter, Ms. L, who was pregnant. Ms. J stated that Constable E indicated that all liquor was supposed to be gone, to which Ms. L responded that the jug contained soda.

Ms. J stated that Constable I was telling individuals at the door of the establishment that they had to leave. According to Ms. J, a conflict erupted and Constable I took Mr. D outside. Ms. J indicated that this upset Ms. C who went to get Mr. A. Ms. J stated that Mr. A started walking out, but three or four members stopped him and pushed him into a speaker, refusing to let him go. Ms. J stated that the members attempted to handcuff Mr. A, being very rough. She related that she came out from behind the counter and told them "please don't do this we are good people," and tried to grab Mr. A. She stated that Constable E and a member with short blond hair told her to let go, or she would be charged too. Ms. J related that the members then got Mr. A outside. Ms. J did not witness the events that occurred outside.

Ms. L

Ms. L stated that at about 2:30 a.m., a "girl cop and a Pakistanian male cop" came into the bowling centre and told them that it was time to shut everything down. Ms. L stated that she and her mother, Ms. J, took all of the drinks away, cleared the tables, locked up the alcohol, and told everyone that they were done for the night. Ms. L stated that when the members returned, approximately fifteen people were left at the party, and her husband was drinking a jug of pop which members thought was alcohol. Ms. L stated that the members then went to the door of the establishment, where Mr. D and Ms. C. were waiting, presumably for a cab. According to Ms. L, one member asked them to leave, to which they replied that they were waiting for a cab. Ms. L indicated that the member replied not to be stupid, that they would never get a cab on New Year's. She related that at that point, the individuals asked for a ride home, and the member told them to walk. Ms. L recalled that Mr. D stated that they were not going to walk.

Ms. L stated that at that point, Mr. A stood up, asked what they were doing with Mr. D, and told the members that they could not make the individuals walk home, as they needed a sober ride home. According to Ms. L, one member told Mr. A to be quiet and shoved him into a speaker. Ms. L related that Mr. A then got up and told the member not to touch him, at which point, two members took Mr. A and dragged him outside. Ms. L also indicated that at the same time Mr. A was being shoved into a speaker, the "Pakistanian cop" was telling her husband, who was sitting at the bar, that he would be arrested if he would not stop talking.

Ms. L stated that when she got outside, Mr. A was already on the ground, surrounded by four or five members. She related that she tried to take pictures with her camera. She indicated that she saw Mr. A get kicked in the face and stomach and that two members were kicking him, and remembered that when Mr. A got to his feet, he was covered in blood, his teeth were loose, and the members handcuffed him. Ms. L stated that she attempted to take pictures, but the members were blocking her view with their backs.

Ms. L did not recall anyone arguing with or yelling at the members.

Ms. M

Ms. M recalled two members arriving at the bowling centre sometime after 2:30 a.m., stating that the bar was closed and that everyone would have to leave. Ms. M stated that she and others told the members that they were waiting inside for their designated driver. Ms. M related that the members left, returning shortly thereafter with five more members and demanding that everyone leave the establishment immediately. Ms. M specified that when the members returned, the attitude in the establishment was "hostile" and that patrons had likely yelled at the members. According to Ms. M, she and her friends informed the members that they were waiting for their driver, and that they wanted to stay inside due to the cold. Ms. M indicated that Ms. N was trying to get a cab at that point, but they were all busy. She stated that one of the members asked Ms. N if she had called any cabs; when she said "yes," the member told her to "shut the fuck up." Ms. M stated that Mr. D then told the member not to talk to Ms. N like that, and in response, the member attacked and arrested Mr. D and dragged him outside.

According to Ms. M, when police arrived at the bar for the second time, Mr. A was quite drunk and loud, and swearing "in a social manner." Ms. M stated that at that point, Mr. A went to Constable E and asked why Mr. D was being arrested. Ms. M indicated that she did not see Mr. A assault anyone, and when she went outside, she found Mr. A in a "bloody heap." Ms. M described most of the partygoers as intoxicated.

Ms. N

Ms. N provided a written statement. She stated that she was sitting on some steps inside the bowling centre with Mr. D when the RCMP members were trying to send them out in the cold. She stated that Constable E was being very rude, and that Constable I was trying to make them leave. Ms. N stated that she stood up and said, "It's because of cops like you that people freeze to death, I have been calling for a ride you can look at my phone." She indicated that at that point, Constable I told her to "shut the fuck up and sit down."

Ms. N stated that at that point, Mr. D stood up and told Constable I not to talk to her like that. According to Ms. N, the members then took Mr. D outside and put him in a police vehicle. Ms. N explained that Mr. A was worried about Mr. D, and asked several times why he was taken and where he was. Ms. N stated that Mr. A "calmed down finally," and when she looked over again, she saw three members on top of Mr. A, beating him.²

The Evidence of the Members

None of the members spoke directly with the public complaint investigator. However, they all made contemporaneous notes and provided oral testimony at Mr. A's trial on this matter.

Constable F

In his notes, Constable F indicated that he attended the bowling centre with Constable E at approximately 3:25 a.m. He noted that the bar was still open, and that people were still drinking and playing pool. Constable F related that he spoke with Ms. J, and told her and "O" that they could not serve liquor, and that a crowd of people could not be in the bar. According to Constable F, various persons were intoxicated and still had full drinks that he assumed to be alcoholic beverages in front of them. He stated that he began removing drinks, at which point the partygoers became "uncooperative and belligerent." Constable F stated that he gave Ms. J fifteen minutes to have everyone leave and she agreed. He also stated in his testimony at trial that he had loudly announced to the patrons that they had to stop drinking and exit the establishment. He stated that patrons were "aggressive, rude" and "yelling and swearing" in response.

Constable F stated that he returned to the bar with the other members at approximately 3:45 a.m., by which point some of the attendees had left. He noted that a male at the bar was still drinking from a carafe, and stated that the male, when asked, said that he was drinking rye and coke. Constable F noticed that the drink disappeared quickly thereafter, removed by Ms. L. Constable F stated that he again told the occupants of the establishment to leave, but no one left. He also stated that he noticed a young woman yelling at Constable E, and stated that Constable I told the young woman to be quiet. At trial, he clarified that Constable I told her to "shut up."

Constable F related in his notes that he then told Ms. J that she could be reported to the Alberta Liquor Control Board and that her licence could be revoked, and that he also told the male who had been drinking at the bar to leave. According to Constable F, the male stated that he would not leave, and Constable F grabbed his arm while the male held on to the bar counter. Constable F stated that he started to go outside to find assistance and, while going outside, saw a white male dressed in a tee-shirt yelling, swearing, and being restrained by two or three females. Constable F observed the male lunge at Constable E. He specified at trial that at that point, he formed the opinion that Mr. A was drunk.

In his notes, Constable F indicated that he, Constable H and Constable G decided to arrest the male (later identified as Mr. A) but he was blocked by the females. He stated that the members eventually got to Mr. A, who continued to resist and fight the members. Constable F stated at trial that he was holding Mr. A by the arm, that Constable G held his other arm, and that Constable H was behind Mr. A. He also indicated at trial that Mr. A continually tried to pull away, plant his feet to the ground, and jerk his arms about. Constable F recalled in his notes that Mr. A was restrained until the members got him outside, but at that time, Mr. A punched him in his right ear, causing it to bleed. At trial, Constable F stated that he then pulled Mr. A to the ground by the arm where he landed face down and fell on top of him, at which point he tried to get Mr. A's arms out from underneath his body. Constable F denied punching or kicking Mr. A in the face or elsewhere. According to Constable F's notes, the members tried to handcuff Mr. A, but he continued to fight them. Constable F added that the partygoers continued to yell at the members once outside.

Constable F's testimony at trial did not differ from his contemporaneous notes in any material respect.

Constable E

Constable E noted that she and Constable F attended the bowling centre at approximately 3:25 a.m. after noticing people playing pool and sitting at the bar, and observed individuals continuing to consume what she assumed to be alcohol. Constable E specifically noted one couple at the bar with beer in front of them, as well as a couple sitting in the bowling alley portion. Constable E stated that Mr. P took a carafe away and told the members that he would get everyone to leave. In her testimony at trial, Constable E stated that she had smelled a glass of dark-coloured liquid and it smelled like liquor. Constable E noted that the members told Ms. J and Mr. P to have everyone out in fifteen minutes, and that people were not allowed to consume alcohol after 3:00 a.m. According to Constable E, patrons began to question the members. She and Constable F then left.

In her notes, Constable E indicated that she and Constable F returned to the bowling centre at approximately 4:00 a.m., accompanied by Constable I, Constable H, Constable G and Mr. K. Constable E stated that upon entering the bar, she observed a male drinking from a carafe. Constable E stated that she walked towards the male, at which point "a pregnant woman behind the bar"³ took the carafe away. Constable E related that she asked why the male was still drinking. She stated that when the male told her that it was water, she pointed out that the liquid in the carafe was dark brown. Constable E stated that the female refused to show her the carafe.

Constable E noted that Constable F advised that a liquor report would be completed, at which point the patrons began getting vocal. Constable E related that a blonde and a brunette female were especially vocal, and were told by her and Constable I to "mind their own business." According to Constable E, the blonde female continued to be vocal, and then sat down beside a male on the steps. Constable E noted the blonde female and the male speaking with Constable I and Constable H, and stated that the male "started to get vocal." She stated that Constable H then took hold of the male and escorted him out. In her testimony at trial, Constable E specified that Constable H "grabbed him by the arm and just kind of like, got him up."

Constable E stated that the blonde and brunette females then became very irate. Constable E related that she went outside the bar, and heard the brunette female crying and screaming at the members. According to Constable E, she walked back into the porch area of the bar as she realized that she had left Constable F behind. She stated that at that point, a male later identified as Mr. A:

[...] lunged towards [her] grabbing at [her] demanding to know what had happened to the younger male. Cst E pushed him away as the female patrons attempted to hold him back and away from the member. [They] all ended up outside when the male again came after Cst E totally intox, irrate and out of control. Cst E advised him that the male was simply being driven home but he did not seem to comprehend this. The female patrons attempted with [she] believe[s] one male to get [Mr. A] back inside as they realized how out of control he was.

In her testimony at trial, Constable E stated that at one point, Mr. A had actually grabbed hold of her jacket. Constable E stated that the patrons got Mr. A back inside the bar, but indicated that he then got into an altercation with Constable H, Constable F and Constable G. In her testimony, Constable E stated that she had told Constable F that Mr. A had grabbed her, that he was out of control, that she had tried to push him away, and that the three females had helped keep Mr. A away from her. Constable E related that the members attempted to subdue Mr. A, who continued to resist and was eventually brought outside. She described the three members as struggling to keep Mr. A under control, and stated that Mr. A would not respond to verbal commands. According to Constable E, at this point the other patrons were screaming at the members. She related that Constable I tried to reason with Mr. A, who was handcuffed after being taken to the ground. Constable E stated that Mr. A was then lifted from the ground and transported to the hospital. Constable E observed that Constable F had blood on his right ear, neck and jacket, and she took photos of his injury at the detachment.

Constable E's testimony at trial did not differ from her contemporaneous notes in any material respect.

Constable I

Constable I stated that the members had attended the bowling centre to deal with people continuing to consume liquor after hours. Constable I stated that a female with a cell phone (later identified as Ms. N) started to get involved, talking about having to wait for a taxi and stating that she had asked police for a ride and was refused. In his testimony at trial, Constable I stated that he probably told Ms. N to "shut the fuck up" and sit down. He related that Ms. N did sit down but continued talking, and noted that he again told her to shut up. He stated that Mr. D then told him to shut up, and stated that he told Mr. D to mind his own business. According to Constable I, Mr. D persisted, and accordingly, Constable I told Constable H to remove him. At trial, he specified that it was because he had told Mr. D to leave the licensed premises and Mr. D had not left. Constable I stated at trial that Constable H grabbed Mr. D's arm and escorted him out, and he was placed in the back of a police vehicle. Constable I stated in his notes that Constable E then approached to request that they release Mr. D, and Constable I advised her that they would once CPIC checks had been completed.

Constable I stated in his notes that Ms. C then came outside and began screaming when she realized that Mr. D was in the police vehicle. Constable I related that he was finishing his CPIC check when he heard a "commotion," and indicated that he "went over" and found Mr. A on the ground with the right handcuff on and Constable F in control of the cuff. Constable I stated that Mr. A was face down with blood coming from his mouth. He also observed that Constable H was in the area of Mr. A's head. In his testimony at trial, Constable I stated that he saw Mr. A fall down outside the bar and then re-enter the bar, and that the next time he saw Mr. A he was on the ground with the members on top of him, as described above. He stated that he had not made note of seeing Mr. A fall outside the bar. Constable I also indicated at trial that he did not see Mr. A strike the members or vice versa.

Constable I stated that he knelt to get Mr. A's attention and to get him to stop struggling. He indicated that Ms. B then arrived, and he was able to get Mr. A off the ground. Constable I described Mr. A as very agitated and asking who had broken his teeth. Constable I stated that he had Mr. A's handcuff removed and, with Ms. B's help, had Mr. A get into a police vehicle to go to the hospital. According to Constable I, there was a great deal of yelling and swearing on the part of the partygoers.

Constable I's testimony at trial differed from his contemporaneous notes only insofar as he indicated at trial that he had seen Mr. A exit the bar once prior to being taken out by the members.

Constable G

Constable G stated that he and the other members attended the bowling centre because partygoers were drinking alcoholic beverages after hours. Constable G noted that upon arrival at the bowling centre, he noted patrons drinking and one female passed out at her barstool. He described the patrons as upset with the members for trying to shut down the party. Constable G stated that one male subject became belligerent with the members and, as a result, he was escorted out of the bowling centre and placed in the back of a police vehicle. Constable G related that at that point, Mr. A began swearing and being belligerent towards the members. Constable G described Mr. A as intoxicated. In his testimony at trial, he stated that Mr. A had to be removed, as he was causing problems.

Constable G stated that the members followed Mr. A back into The bowling centre, and indicated that Mr. A was walking backwards, facing the members. According to Constable G, Mr. A tripped and fell over a step, at which point he and two other members grabbed him to begin taking him out of the establishment. In his testimony at trial, Constable G stated that he would describe Mr. A as either resistant or combative, in that he had made himself rigid although he was walking unassisted. Constable G noted that the other partygoers then began swearing and yelling at the members, and grabbing at their clothing in an effort to hold them back. Constable G observed that his coat was ripped in that fashion.

Constable G related that Mr. A displayed combative behaviour. He stated that the members removed him from the premises and attempted to place him in a police cruiser, and subsequently put him on the ground while they tried to handcuff him. In his testimony at trial, the member described Mr. A as being brought to the ground forcefully. Constable G noted that he was no longer holding Mr. A at that point. He stated that Ms. B then approached him, very upset, and that he tried to calm her down. Constable G stated that he also spoke with two to three other guests in an effort to calm them down. Constable G stated that Mr. A was placed in a police cruiser once he had been handcuffed, and taken to the hospital.

Constable G's testimony at trial did not differ from his contemporaneous notes in any material respect.

Constable H

Constable H noted that he met with Constable E and Constable F at 3:30 a.m., and was advised at that time that his assistance was needed to clear the bowling centre. Constable H stated in his notes that he entered The bowling centre with Constable F, Constable G, Constable I, Constable E and Mr. K at approximately 3:50 a.m., and noticed three females and one male sitting near the entrance, a female passed out at the bar, and two males (one later identified as Mr. A) being verbally abusive towards the members. Constable H stated that when Constable F told Ms. J that he would be doing a liquor report, Ms. J also began yelling at the members. He also indicated that he saw a blonde female tell Constable I to shut up, and then return to the front entrance area. According to Constable H, Mr. D was arrested for public intoxication, and members intended to drive him home.

Constable H noted that after Mr. D was removed, he was approached by a brunette female who wanted Mr. D released. Constable H stated that he told the female to go back into the bar and that Mr. D would be driven home. He related that the brunette female ran into the bar, and that all those in the establishment came out and began yelling and swearing at the members. Constable H recalled that Mr. A was trying to get near the members, saying "Don't Fuck around at me" and threatening to harm them. In his testimony at trial, Constable H also noted that he saw Mr. A "pushing back" on Constable E, and Constable E pushing Mr. A back. According to Constable H, Mr. A was pulled back into the bar by three females who had been holding him back, but then returned outside. Constable H noted that the members decided to arrest Mr. A for causing a disturbance, and recalled that Mr. A was then pushed back into the bar again. Constable H stated that the members then entered the bar to arrest Mr. A. At trial, Constable H testified that Constable I had told him, Constable F and Constable G to arrest Mr. A and detain him for causing a disturbance and for a Gaming and Liquor Act violation.

At trial, Constable H stated that he advised Mr. A that he would be coming with the members, and that Mr. A attempted to punch him at that time. In his notes, Constable H stated that while he was trying to gain control of Mr. A, Mr. A attempted to punch him. He stated that he grabbed Mr. A's arms, and that "members had to use force to get A out of bar." According to Constable H, Ms. J grabbed Constable G's coat, and Mr. A punched Constable F on the right side of the head. Constable H stated that he "had to use force to subdue A." Constable H related that Mr. A then hit him in the lower back, and he again used force to subdue Mr. A, allowing him and Constable G to grab one of his arms while Constable F tried to handcuff him. He stated that Constable I attempted to calm Mr. A down. According to Constable H, Constable F and Constable I then stood Mr. A up, and the latter was still unrestrained and yelling about his tooth being knocked out.

Constable H's testimony at trial did not differ from his contemporaneous notes in any material respect.

Other Evidence

Mr. P

Mr. P explained that on January 1, 2005, he was the bartender at the Star Dust, an establishment under the same ownership as the bowling centre. He stated that he finished work at the Star Dust at approximately 3:00 a.m., and was on his way home when he noticed lights on at the bowling centre. Mr. P related that he then entered the bowling centre and told those inside that it was time to shut down. Mr. P noted that several people were still consuming alcohol, and that the shutters for the bar were still up. According to Mr. P, as soon as he mentioned to Ms. J that the bar should be closed, she began cleaning and locking up.

Mr. P stated that two members came in while he was there, and he told them that Ms. J was locking up. Mr. P indicated that he left the bowling centre at that point.

Mr. K

On January 1, 2005, Mr. K was employed as a Special Constable by Alberta Transportation. Mr. K had been working with Constable H, and both men had returned to the High Level RCMP Detachment for a coffee prior to Mr. K going home. Mr. K stated that once at the detachment, Constable E told them that a party was continuing at the bowling centre, and that she had been in the establishment and patrons were still consuming alcohol. Mr. K indicated that Constable E and other members decided to attend the bowling centre to clear the area, and Constable H invited Mr. K to join them.

Mr. K stated that he rode to the bowling centre with Constable H. He recalled entering the establishment and seeing a table full of drinks, including beer bottles, and a woman "passed out" at the bar with a brown-coloured drink in front of her. Mr. K assumed that the drink contained liquor. Mr. K stated: "[...] the whole attitude of the place was just horrendous they were yelling out fucking cops an pigs an all this kind of stuff." According to Mr. K, he then heard over the radio that there was a disturbance going on in cells, and returned outside to sit in a police vehicle. When he returned outside, he stated that he saw that Constable I had Mr. D in the back of a police vehicle, and was trying to identify him.

Mr. K related that once outside, he saw Mr. A come "flying" out the doors of the bowling centre, with his hands clenched. Mr. K stated that he lost sight of Mr. A as he passed behind a vehicle. He indicated that he exited the vehicle to see what was happening, came around another vehicle, and saw Constable F and Constable H wrestling with Mr. A, trying to get his arms out from under his body, and telling him to calm down. At that time, Mr. K did not notice any blood on Mr. A. Mr. K concluded that the members did not need any assistance and returned to the police vehicle to monitor what was occurring in cells. According to Mr. K, when he returned to the detachment he cleaned a cut that Constable F had received on his ear.

Medical Records

Mr. A's medical records indicate that he attended the hospital at approximately 4:20 a.m. on January 1, 2005. Both the "Nursing Assessment" and "Physician Record" sections of the form indicate that Mr. A reported being punched in the face. Mr. A was noted to have a cut on his inner, upper lip by the attending physician, while the nurse noted that he had a cut on his lower lip, a swollen upper lip, a scrape on his cheek, and a superficial laceration on the forehead.

Mr. A's dental records indicate that he visited the dentist on January 4, 2005. The records state that Mr. A was hit in the face, and that two of his front teeth were mobile and had broken root tips, necessitating removal.

Liquor Licence

The bowling centre Bowling Centre and Liquor Store was in possession of a Class B liquor licence at the time of the events giving rise to this complaint. The licence specifies that alcohol may be served from 10:00 a.m. to 2:00 a.m. daily, and consumed until 3:00 a.m. Alberta's Gaming and Liquor Act and associated regulations provide that Class B licensed establishments are exempt from the statutory requirement that patrons leave the premises by 3:00 a.m.

First Allegation: The members acted without authority and discreditably by demanding that persons leave the bowling centre.

The evidence of both the partygoers and the members was that the members demanded that patrons leave the bowling centre, as it was past 3 a.m. While the partygoers claimed that they were not consuming alcohol, the members saw open alcohol still accessible and believed that certain individuals were continuing to drink. In such situations, the most expedient way to curtail after-hours liquor consumption is to vacate and close the licensed establishment, not least because such consumption is in breach of the conditions of licence. In this situation, however, it is unclear whether or not liquor was actually being consumed. In addition, it is apparent that the members' decision was motivated by their belief that the bowling centre was subject to the general statutory requirement that patrons leave licensed establishments by 3 a.m. when in fact, as noted above, the bowling centre was in possession of a Class B licence, and patrons were not required to leave the establishment. It was also extremely cold outside, and members were aware that patrons had no way of getting home short of a taxi, which the patrons claimed they were attempting to call without success, or a designated driver such as Ms. B. In light of the circumstances as described, I find that the members' demand that the partygoers leave the bar immediately was unreasonable.

Finding: It was unreasonable to demand that the partygoers immediately leave the bowling centre.

Recommendation: That a senior member review with the subject members Alberta's Gaming and Liquor Act and the different classes of licensees enumerated therein.

Second Allegation: Constable I improperly told one of the partygoers to "shut the fuck up."

Mr. D, Ms. C., Ms. M and Ms. N all stated that Constable I told Ms. N to "shut the fuck up." At trial, Constable I agreed that he had probably used those words. I accept that Constable I told Ms. N to "shut the fuck up."

In this instance, it is apparent that Ms. N was intoxicated and likely in Constable I's way. He wanted her out of the way so that he could continue to deal with the situations arising within the bowling centre. However, Constable I could have and should have accomplished his goal without the use of profanity. His attitude towards Ms. N in this instance fell short of the professionalism which the public has a right to expect from members of the RCMP. I find that Constable I used inappropriate language when speaking to Ms. N.

Finding: Constable I used inappropriate language when speaking to Ms. N.

Recommendation: That Constable I apologize to Ms. N or, if he is unable or unwilling to do so, that a senior member of the RCMP apologize on his behalf.

Third Allegation: Constable I and Constable H unlawfully detained Mr. D; and

Fourth Allegation: Constable I improperly searched Mr. D and took his property.

It is apparent from the evidence that Mr. D, Ms. C, Ms. M and Ms. N were present near the front doors of the establishment during Mr. D's interaction with Constable I and his eventual removal from the establishment by Constable H. The consistent evidence of all involved was that Mr. D took issue with Constable I's treatment of Ms. N and consequently became somewhat upset. Ms. M stated that Mr. D was arrested, Constable I stated that Mr. D was taken out and detained for refusing to leave licensed premises upon request, and Constable H stated that Mr. D was arrested for public intoxication. Mr. D, Ms. C. and Ms. N did not mention Mr. D being arrested, only the fact of his having been escorted out and detained. The members also expressed that their intention was to remove Mr. D from the situation and to drive him home afterwards; there was no stated intention to lay charges or to return Mr. D to the detachment cells.

After having carefully reviewed the totality of the evidence relating to this allegation and noting both the consistency of the partygoers' evidence and the discrepancies in that of the members, I conclude that the members did not articulate in any consistent or meaningful way either the reason for detaining Mr. D or their justification for doing so. Alberta's Gaming and Liquor Act empowers peace officers to take intoxicated individuals into custody, and the Criminal Code outlines various offences relating to public intoxication and causing a disturbance. However, there is no evidence that Mr. D was thought to be intoxicated, no member or party guest outlined indicia of impairment as they related to Mr. D, and there is no evidence that he was swearing, screaming or shouting-rather, the members note only that he took issue with Constable I swearing at Ms. N. While Mr. D may have aggressively questioned Constable I, that alone could not provide justification for his detention by the members. Accordingly, I find that Constable I and Constable H improperly detained Mr. D. Consequently, I also find that Constable I's subsequent search of Mr. D was improper.

While Mr. D claimed that the members had removed some nutritional supplements and $12 from his pocket and had neglected to return those items, the evidence on that point is scarce. I find that there is insufficient evidence to determine that Mr. D's property was seized and not properly returned to him.

Recommendation: That a senior officer provide Constable I and Constable H with operational guidance regarding the requirements for detention.

Fifth Allegation: Constable F, Constable G and Constable H used unauthorized and excessive force against Mr. A.

Mr. A essentially stated that he was dragged out of the bowling centre for no apparent reason, punched and kicked. Constable F, Constable G and Constable H, however, indicated that Mr. A had aggressively approached Constable E and had lunged at her, forcing her to push him away. Constable E stated that Mr. A then attempted to get to her a second time. Constable H indicated that he had seen Mr. A and Constable E pushing each other. The evidence of Mr. A and of the members is consistent in that they describe him as confronting Constable E near the entranceway of the establishment, and subsequently retreating inside the establishment where Constable F, Constable G, and Constable H approached him and took him into custody.

Mr. A was described as "out of control" and "upset." The members described him as intoxicated. I accept that he was likely verbally belligerent with the members and that he likely approached Constable E in an aggressive manner, causing her to push him away. Alberta's Gaming and Liquor Act provides that no person may be intoxicated in a public place. The statute further provides that if a peace officer believes on reasonable and probable grounds that a person is intoxicated in a public place, they may take that person into custody until such time as they have recovered sufficiently to be safely released, or until another person undertakes to take care of the individual in custody. The Criminal Code prohibits anyone from fighting, screaming, shouting, swearing, using insulting or obscene language in or near a public place. Here, the members described Mr. A as being intoxicated, and I accept their evidence in that respect. In addition, three of the four members and Mr. K, as well as other party guests, described Mr. A as yelling and/or swearing outside the bowling centre or just within its entrance doors: Ms. C stated that her father was yelling at the members, and Ms. M stated that Mr. A was drunk, loud and swearing. In my view, ample reasonable and probable grounds existed to support the belief that Mr. A had committed either offence.

Section 10(a) of the Canadian Charter of Rights and Freedoms ("Charter") states that everyone has the right to be informed promptly of the reasons for their arrest or detention, and this duty to give reasons is also contained in the Criminal Code. It is clear from the evidence that while the members formed the intention to arrest Mr. A (although it is not clear for which offence) in the course of a discussion amongst themselves after Mr. A had retreated inside the establishment, none of the members informed him of the reasons for his arrest and/or detention. The members simply approached him, took hold of him, and began forcefully removing him from the establishment. Constable H stated that he told Mr. A that he was going with the members, and while this may be the case, such a statement does not suffice to inform Mr. A of the reasons for his arrest.

While a clear statement is not always necessary to properly effect an arrest and may not be possible in some circumstances, the accused must at the very least understand why he is being arrested, or he cannot be expected to submit to the arrest.⁴ In this case, Mr. A was not taken into custody during or immediately following his interaction with the members. Rather, he was allowed to retreat inside the establishment for at least as much time as it took the members to determine what should be done with him, and there is no evidence that a decision in respect of the offence that he was believed to have committed was made. As a result, the reasons for Mr. A's arrest, in my view, would not reasonably be obvious to him such that a statement by the members would be unnecessary. I cannot find any justification in the evidence for the members' failure to provide Mr. A with the reasons for his arrest or, indeed, any meaningful instruction to him in relation to his detention. He was not provided with reasons at all, and was not informed of the offences which he was alleged to have committed until he was charged some time later. A de facto arrest cannot be presumed to exist simply because an individual is physically detained. Accordingly, I find that the members failed to properly arrest Mr. A.

The Criminal Code empowers police officers to use reasonable force in the administration and enforcement of the law. However, force may only be used in furtherance of an activity that is authorized by law. In this instance, I have found that the members failed to properly arrest Mr. A. As such, they were not in the process of taking an action authorized by law, and were not empowered to use force. In light of the foregoing, I find that the subject members' use of force in this situation was unreasonable.

Recommendation: That a senior member provide Constable F, Constable H and Constable G with operational guidance concerning the requirements for arrest and detention.

Sixth Allegation: An unidentified member acted improperly by attempting to seize the camera of an individual who was attempting to take pictures of police actions.

Ms. C stated that an RCMP member attempted to seize Ms. L's camera while she attempted to take pictures of the altercation. Ms. L did not mention such an incident in her statement, although she did indicate that it was difficult to take pictures, as members were blocking her view. Accordingly, I find that there is insufficient evidence to determine that an RCMP member acted improperly by attempting to seize Ms. L's camera.

Finding: There is insufficient evidence to determine that an RCMP member acted improperly by attempting to seize Ms. L's camera.

Comment Regarding the RCMP's Final Report

It is clear from the foregoing that this complaint involved a great many witnesses, several members, and a large volume of information. I would note that the investigation into the complainants' allegations, conducted by Staff Sergeant Q, was exemplary. Staff Sergeant Q conducted an exhaustive search for witnesses to the incident, conducted extensive research, and made often difficult arrangements to have witnesses interviewed. She amply documented her investigative efforts and provided a comprehensive summary of her investigation. I commend Staff Sergeant Q for her efforts in this regard.

Unfortunately, the completeness of Staff Sergeant Q's investigation serves to underscore the RCMP's deficient Final Report in this matter. The Final Report states only that no criminal charges are pending against the involved members and that the complainants' allegations will be examined through the civil litigation process. No findings are provided to the complainants with respect to any of their allegations. It can only be assumed that the form of the Final Report in this instance was reflective of the fact that civil litigation is ongoing.

No provision exists in the RCMP Act specifically allowing a refusal to adequately respond to a public complaint due to ongoing civil litigation. While section 45.36 of the RCMP Act provides for termination in certain situations, that section was not cited in this instance and its use is rarely justified by the existence of civil litigation. The approach used in this instance is not consistent with the duty of the Commissioner pursuant to section 45.4 of the Act to provide complainants with the results of the investigation and a summary of any action taken to resolve the complaint, nor is it consistent with the general principles of transparency and accountability. By relying on the existence of civil litigation, the RCMP effectively abdicated its responsibility to provide the complainant with a final report setting out a clear rationale for how the public complaint was disposed of.

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

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1 Constable F was the only member at the scene of East Indian descent.

2 Several other party guests were interviewed. Their evidence did not differ significantly from that already presented.

3 It will be assumed that Constable E was describing Ms. L. Ms. L was seven months pregnant at the time of the incident and was tending bar.

4 See R. v. Evans, [1991] 1 S.C.R. 869; see also R. v. Kelly (1985), 17 C.C.C. (3d) 419.