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

RCMP Act Paragraph 45.42(3)(a)

Vetted version for posting

July 16, 2009

Synopsis

This complaint arose from the RCMP's disposition of a complaint filed by Mr. K on behalf of his client, A. Mr. A alleges that following a vehicle stop on March 16, 2005, Constable B and Constable C of the Hobbema RCMP Detachment in Alberta subjected him to unnecessary and excessive force.

The RCMP investigated the complaint and determined that Mr. A's allegation could not be supported, as criminal charges were not recommended against the members.

After a careful review of Mr. A's complaint, I find that while the force used by Constable C was reasonable, that used by Constable B was not proportionate in the circumstances.

Overview of the Process

On April 10, 2007, Mr. A, by way of Mr. K, complained directly to the RCMP regarding the actions of Constable B and Constable C. Constable D of the Wetaskiwin/Hobbema General Investigation Service was initially assigned to investigate the complaint. However, Mr. K repeatedly expressed concerns regarding Constable D's close working relationship with the subject members. As a result, the investigation was reassigned to Staff Sergeant E of the Battle River District RCMP in December 2007.

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 complainant summarizing the results of the investigation and any action taken to resolve the complaint.

The RCMP's Final Report dated January 15, 2009 did not support Mr. A's allegations.

Mr. A was not satisfied with the RCMP's disposition of his complaint. The Commission received Mr. A's request for review on February 19, 2009, and it received from the RCMP the investigation documents relating to this file on April 1, 2009. On April 14, 2009, the Commission requested additional relevant materials relating to this file. The additional materials were received on June 24, 2009.

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 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. A's complaint and letters, relevant court transcripts, and the RCMP's operational file, investigational materials and Final Report.

Facts

Mr. A provided a statement to the public complaint investigator. He stated that on the evening of March 16, 2005, he was a passenger in a vehicle driven by Ms. F. Mr. A related that two RCMP vehicles put their lights on to stop them, but Ms. F kept going despite his asking her to stop. Mr. A stated that he turned the ignition key, and the vehicle then came to a stop. He related that he jumped out of the vehicle and began to run as Constable C was chasing him. He indicated that he heard a member say, "Stop or I'll shoot" and "Freeze." According to Mr. A, he fell on some ice, got to his knees, put his hands behind his head, and stated, "I give up." Mr. A stated that Constable C then tackled him from behind, put his knees on Mr. A's neck so he would not move, hit him, and handcuffed him. Mr. A recalled that after he was handcuffed, the member grabbed him by the hair and punched him in the face, and then began hitting him with a metal object and kicking him repeatedly on the left side, right side and upper legs. Mr. A indicated that Constable B was close behind Constable C and arrived on the scene prior to his being handcuffed, and that Constable B struck him in the groin. Mr. A stated that he was not trying to resist, but was struggling to get his breath, as he had been winded when Constable C tackled him.

Mr. A stated that Constable C dragged him by the hair to the police vehicle. According to Mr. A, he then told the members that he could not breathe properly and needed some medical attention. Mr. A stated that he lost consciousness and then recalled waking up in the hospital.

Following his apprehension, Mr. A was seen by Dr. G, the physician on call at the Wetaskiwin Hospital at approximately 9:30 p.m. on March 16, 2005. Dr. G indicated that Mr. A admitted to drinking and smelled like alcohol. He noted that Mr. A had a contusion on his right eye and to the right side of his nose, and that his clavicle was broken. The broken clavicle caused a tear in his lung, and a chest tube was inserted. Mr. A was also found to have a broken rib. Dr. G could not identify with certainty the cause of Mr. A's injuries.

Ms. F was interviewed during the initial police investigation. She stated that Mr. A did not want her to stop at first, and then told her to stop and to run. Ms. F was apprehended without incident.

In his testimony at the preliminary inquiry in this matter, Constable C stated that at approximately 8:20 p.m. on March 16, 2005, he responded to a complaint of a blue van doing "donuts" in front of a particular house. He was advised that there may be a firearm¹ in the subject vehicle. Constable C stated that shortly thereafter, he observed the subject vehicle pass him, followed by two police vehicles. Constable C stated that he saw the van stop a short distance away, and pulled up on the passenger side of the vehicle. According to Constable C, he observed Mr. A exit the passenger side of the van and run towards and past him. He related that at that point, he exited his vehicle and began pursuing Mr. A.

Constable C stated that he told Mr. A, "stop, police" several times while chasing him on foot. Constable C noted that he had unholstered his sidearm due to being advised that a firearm may be present in the subject vehicle, but holstered the weapon when he noticed that Mr. A did not have a firearm. Constable C stated that he observed Mr. A slip and fall as he went through a gap in a fence, and continued to pursue him on foot. According to Constable C, he then tackled Mr. A, who had turned as the member was issuing commands to stop. He indicated that both men fell to the ground together, he falling on his right shoulder and Mr. A falling on his left shoulder. Constable C stated that he took Mr. A to the ground, and that Mr. A began to kick and push with his right hand. According to Constable C, he told Mr. A to stop kicking and to put his hands behind his back, but Mr. A was not complying.

Constable C stated that Mr. A continued to kick, and that he held Mr. A to the ground on his stomach by putting him in a headlock. Constable C stated that he then struck Mr. A in the right eye and/or cheek area with a closed fist. He indicated that following the strike, Mr. A stopped struggling. At that point, Constable C indicated that he handcuffed Mr. A, and then noticed that Constable B was also on the scene and kneeling at Mr. A's feet. He indicated that he had not seen Constable B arrive. According to Constable C, he then informed Mr. A that he was under arrest for failing to remain at the scene of the vehicle stop, and escorted him to a police vehicle. He indicated that at that time, Mr. A complained that he had a hard time breathing, and as a result, medical attention was sought. Constable C also stated that he believed that Mr. A was very intoxicated, as he had liquor on his breath. Constable C stated that he had previously dealt with Mr. A while he was sober, and he had been "very easy to deal with."

In his testimony at the preliminary inquiry, Constable B explained that at approximately 8:30 p.m. on March 16, 2005, the Hobbema RCMP Detachment received a complaint regarding a particular van that was reported to contain a firearm. Constable B stated that he was driving one police vehicle, and Constable C and Constable J were also driving police vehicles. Constable B stated that Constable J was driving parallel to him, on another street. He indicated that he saw her stop a blue van, and pulled in beside her within seconds, with his emergency lights activated. Constable B stated that he also contacted the telecommunications centre to initiate a high risk vehicle stop, as it was believed that the stopped van had a firearm on board. Constable B recognized the van as one owned or frequently operated by Mr. A. Constable B indicated that he believed Mr. A to carry weapons.

Constable B stated that while activating the radio system, he saw the stopped van leave its stationary position and accelerate, and he proceeded to declare a high speed pursuit. According to Constable B, the members followed the van, but speeds were not high, as it was a snowy winter day. Constable B related that the van stopped approximately one kilometre later, at which point he and the other police vehicle also stopped. He recalled that at that point, Mr. A emerged from the passenger side of the van and ran towards the police vehicles, then turned and ran away from the vehicles, into some residential yards. Constable B stated that Constable C was in front of him at that point, and both members were pursuing Mr. A. He stated that Mr. A went through a large hole in a residential fence, followed by Constable C.

Constable B stated that when he emerged from the hole in the fence, he saw Constable C falling to the ground with Mr. A. He indicated that it appeared as though Constable C had just tackled Mr. A. Constable B related that Constable C was yelling to Mr. A to get his hands out, and that Mr. A was struggling. According to Constable B, by the time he reached the men, Constable C was on top of Mr. A, who was lying on his stomach and kicking. Constable B stated for the court that he observed Mr. A to be resistant and combative due to his twisting and kicking, and accordingly, he used empty hand force to strike Mr. A's left side, back and groin. Constable B stated that Mr. A stopped kicking within a few seconds and was handcuffed. Constable B stated that he did not use any weapon, including pepper spray, a baton or a sidearm, on Mr. A, and that he did not see Constable C using any weapon. Constable B also stated that he believed Mr. A to be intoxicated, based on his speech being slurred.

Constable J also testified at the preliminary inquiry. Her version of events prior to the vehicle stop was consistent with that of Constable C and Constable B. However, Constable J indicated that she did not witness Mr. A's apprehension and arrest.

The members' occurrence reports, prepared contemporaneously, were substantially similar to their testimony in court.

Ms. H, a bystander, was interviewed during the public complaint investigation. She stated that she was inside her residence when Mr. I, a friend, called her to the bedroom. She indicated that she looked outside, and saw a male, later identified as Mr. A, lying on the ground, with police officers "just hitting him with those long bars." She further specified that she saw Mr. A being hit a "couple times," and stated that what she saw was mainly police officers standing over him. Ms. H stated that Mr. A was lying on his chest, and that there were "dogs, canine and lots of cops around." According to Ms. H, the police officers were yelling. Ms. H recalled seeing approximately four "paddy wagons."

Mr. I was also interviewed. He stated that he saw a male, later identified as Mr. A, leave a vehicle that was being chased by two to three police vehicles. Mr. I stated that by the time Mr. A reached a back alley, he was "surrounded" by two members and was "putting his hands up in a surrendering pose." According to Mr. I, he heard a member swearing as he was running toward Mr. A, who had his hands up. He stated that that member punched Mr. A in the head as he tackled him. Mr. I related that he heard Mr. A saying, "quit, quit" and that the member was trying to roll Mr. A over. Mr. I stated that the larger member was yelling profanities, while the smaller one was telling Mr. A to "freeze."

Allegation: Constable B and Constable C subjected Mr. A to unnecessary and excessive force.

Analysis

The Criminal Code empowers police officers to use reasonable force in the administration and enforcement of the law. In addition, the RCMP's CAPRA problem-solving model and the RCMP's Incident Management/Intervention Model (IM/IM) require that members assess risk and continually assess the appropriateness of intervening, in addition to their level of intervention. The IM/IM provides that the best strategy is the least intervention necessary to manage risk and that the best intervention causes the least harm or damage.

In this instance, the evidence of Mr. A and Constable C is similar in many respects. Both agree that Mr. A fled, followed by Constable C, and that he tripped and subsequently regained his footing after going through a hole in the fence. Equally, both indicate that Mr. A had turned towards Constable C prior to the member tackling him. It is following this event that the accounts diverge. Constable C stated that Mr. A struggled and resisted, while Mr. A stated that if he was struggling, it was simply to regain his breath. Constable C indicated that he hit Mr. A once in the face, while Mr. A reported being handcuffed and subsequently hit in the face, kicked, hit with a metal object, and beaten about the body. Ms. H stated that Mr. A was hit twice, surrounded by "lots" of police officers as well as dogs, and hit with "long bars." Mr. I saw Mr. A being hit once. Constable B reported hitting Mr. A three times in the middle and lower body. Both members denied using their batons or other weapons, and neither member noticed the other using any weapons.

In respect of the force used, Ms. H's statement was substantially different from the memory of any other witness, and contained details that cannot be substantiated by any witnesses or documentation, such as the presence of many members and police dogs, and that of four paddy wagons. Accordingly, I will afford little weight to Ms. H's evidence. Weighing the remaining evidence on a balance of probabilities, I have determined that Constable C tackled Mr. A, and then hit him in the face prior to handcuffing him. Constable B, meanwhile, hit Mr. A in the side, back and groin prior to his being handcuffed, as Constable C noted his presence immediately after handcuffing Mr. A and Constable B was not applying force to Mr. A at that time. This interpretation of the force applied by the members does not contradict the medical evidence or the evidence of Dr. G.

Use of Force by Constable C

As noted above, I found that Constable C tackled Mr. A to the ground and subsequently hit him in the face.

Mr. A claimed that Constable C had tackled him after he had essentially stopped fleeing and surrendered. Constable C noted that Mr. A had turned towards him. Nonetheless, Mr. A was in the process of fleeing police. He had ignored numerous and repeated commands to stop. He was known to carry weapons at times. It would not have been immediately apparent to Constable C that Mr. A wished to surrender himself to police, and given his proximity to Mr. A and the ongoing pursuit, it is not only possible but likely that he would not have had time to stop and reassess the situation prior to reaching and stopping Mr. A. Accordingly, I find that Constable C's use of force in tackling Mr. A was reasonable in the circumstances and a proportionate response to Mr. A's flight.

Constable C also hit Mr. A in the face. He stated that prior to using force, he instructed Mr. A to stop kicking and to put his hands behind his back, but Mr. A did not comply. Mr. A, in his interview, did not appear to dispute the fact that he was struggling, but he indicated that he was not trying to resist, but rather trying to regain his breath after having been tackled. This is a reasonable explanation for Mr. A's actions, and one that is consistent with the injuries he was later found to have suffered. Nonetheless, without further explanation, a reasonable person in Constable C's position would not have been able to accurately interpret Mr. A's actions and movements as anything other than active resistance to being handcuffed. I find that Constable C's decision to use empty hand control for the purposes of being able to handcuff Mr. A was reasonable and proportionate.

Use of Force by Constable B

Constable B indicated that he struck Mr. A in his left side, back and groin as he was kicking and struggling while lying on his stomach under Constable C. He stated that he considered Mr. A to be resistant and combative.

As stated above, it was reasonable for Constable B to determine that Mr. A was resistant and combative as opposed to struggling for breath, as Mr. A explained. However, Constable B appears to have struck Mr. A without first assessing the actions being taken by Constable C, who also struck Mr. A, or considering a less forceful means of intervention. Mr. A was being pursued for fleeing a vehicle stop, the vehicle in question was not known to be stolen, Mr. A was not the driver, and it was apparent, according to Constable C, that he did not have a firearm. There was no indication that Constable B thought that Mr. A may be otherwise armed. While I appreciate that Constable B wished to subdue Mr. A such that he could be adequately restrained, I find that the force used was not proportionate in the circumstances. It was not reasonable for Constable B to fail to take note of what actions Constable C was taking or to consider a lesser means of intervention, such as restraining Mr. A's legs. Given that Constable B was able to get sufficiently close to Mr. A to punch his side, back and groin despite what was cited as Mr. A's combative kicking, he would have been within reaching distance of his feet. In light of the foregoing, I find that the force used by Constable B was not reasonable in the circumstances.

Recommendation: I recommend that a senior officer review with Constable B the need to constantly assess all situations in light of the RCMP's Incident Management/Intervention Model.

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 According to RCMP records, the weapon cited as being in the vehicle was a .22 calibre rifle.