Chair's Interim Report – Incident Related to Unlawful Arrest and Excessive Use of Force
RCMP Act Paragraph 45.42(3)(a)
Vetted version for posting
October 22, 2009
Synopsis
This review arose from the RCMP's disposition of a complaint filed by Mr. B on behalf of his client, Mr. A. Mr. A alleges that following a vehicle stop on October 22, 2005, Constable C of the Leduc RCMP Detachment in Alberta unlawfully arrested and detained him. He also alleges that Constables C and D used excessive force in arresting him. He further alleges that Constable D and an unidentified RCMP member1 used excessive force in arresting another passenger. Mr. A claims that both instances where force was used constitute the statutory offence of assault. Mr. A also complained that other members of the Leduc RCMP Detachment neglected their duty in relation to the handling of the initial complaint filed with the RCMP by Mr. B in relation to this incident, constituting the statutory offence of obstruction of justice.
The RCMP investigated the complaint and determined that Mr. A's allegation of excessive and unnecessary force could not be supported. This determination was based on observations made by independent witnesses and investigative material. The RCMP supported Mr. A's allegations with respect to the handling of the initial complaint that was filed by Mr. B, except with respect to one subject member who was present for part of the incident and was therefore regarded as ineligible to conduct the complaint investigation. The RCMP was silent with respect to the allegation of unlawful arrest and detention.
Based on a review of the evidence, I find that it was not reasonable for Constable C to arrest Mr. A for obstructing a police officer and as a result, no amount of force used in his arrest was reasonable.
Overview of the Process
On July 4, 2008 Mr. B on behalf of Mr. A complained directly to the Commission for Public Complaints Against the RCMP (the Commission) regarding the conduct of Constables C and D, Corporal E, an unidentified member of the RCMP, Inspector M. Fe (retired) and Staff Sergeant G. In his complaint, Mr. B alleges that the subject members' conduct also constitutes offences under the Criminal Code.
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 Mr. B summarizing the results of the investigation and any action taken to resolve the complaint.
The RCMP's Final Report, dated July 7, 2009 did not support the allegations with respect to excessive and unnecessary use of force but did support the allegations, aside from one, with respect to the handling of the complaint. The Final Report failed to consider the allegation against Constable C regarding unlawful arrest and detention.
Mr. A was not satisfied with the RCMP's disposition of his complaint. On July 15, 2009, the Commission received his request for review. The Commission received from the RCMP the investigation documents relating to this file on July 31, 2009.
Commission's Review of the Complaint
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 findings, as indicated below, are based on a careful review of Mr. B's complaints, as well as of the RCMP's investigational materials and Final Report, and the relevant court transcripts. Missing from the investigational materials was Crown counsel's letter to the RCMP recommending that charges not be laid against the subject members. The Commission requested a copy of the letter from the RCMP in K Division. The RCMP responded that Alberta Justice had a copy of the Crown's letter but would not release it to the Commission.
Finally, the findings and recommendations made by the Commission are not criminal in nature, nor are they intended to convey any aspect of criminal culpability. Although some terms used in this report may concurrently be used in the criminal context, such language is not intended to include any of the requirements of the criminal law with respect to guilt, innocence or the standard of proof.
Facts
On October 22, 2005, Constable C stopped a white Mustang in front of the Social Services building in Leduc, Alberta, that he observed to be speeding and driving in an erratic manner. He asked the driver of the vehicle, Mr. I, for his driver's licence, registration and insurance. As the vehicle did not belong to Mr. I, he made a call to the owner who advised him where to locate the registration and insurance. Mr. I then provided the documents to Constable C. During this time, Constable C noted that the vehicle had three other passengers in it: a male in the front and two females in the rear.
Constable C observed Mr. I to have signs of impairment, so he requested that he accompany him to his police vehicle. Mr. I complied and was placed in the rear of the police vehicle. Constable C then sent out a request over the police radio that he needed a blank violation ticket. Constable D was nearby in another police vehicle and so he dropped off a booklet of blank tickets. Both officers' evidence is that this interaction lasted less than 30 seconds and Constable D departed the scene.
Constable C then began to write out a ticket for the provincial offence of "stunting" and continued his investigation into the offence of impaired driving in relation to Mr. I. It is Constable C's evidence that shortly thereafter he observed Mr. A exit the stopped vehicle from the passenger side. Constable C testified, and his general occurrence report reflects, that Mr. A repeatedly slammed the vehicle door, which would not stay shut, yelling and swearing while doing so. Mr. A stated that he did get out of the car and slam the door shut several times, as the "strike" on the door was closed and the door would not shut properly. At trial, Constable C testified that he chose to ignore the behaviour.
The evidence of Constable C reveals that he then heard loud music emanating from the stopped vehicle. His general occurrence report, written at the time of the incident, notes: "A had cranked up the stereo." At trial, Constable C conceded that he did not observe Mr. [A] turn up the stereo. In any event, Constable C exited the police vehicle and approached the stopped vehicle. He asked Mr. A to turn down the music, which Mr. A did. Constable C states that one of the females in the rear of the vehicle then stated: "It is not an offence to play music." Constable C advised the three young people that it was an offence to turn up the music and distract other motorists and they could be charged. Constable C also advised Mr. A that he could have been arrested for causing a disturbance when he was yelling and swearing as he tried to shut the car door. According to Constable C, Mr. A replied that he did not care, as he had already been to jail.
Constable C testified at trial that by warning the occupants of the car about the potential criminal offences they could face, his intention was to have them turn the music down in order that he would not have to "deal with them on numerous occasions." However, as soon as he returned to his police vehicle, the music was turned back up again. Constable C testified that he did not know which of the occupants had turned up the music.
Constable C immediately returned to the stopped vehicle, this time from the passenger side. Constable C testified that his plan was just to talk to Mr. A and he chose to talk to Mr. A because in his opinion, "he was the one that might cause [him] a little bit of problems [...]."
According to his general occurrence report, Constable C asked Mr. A to turn down the music and exit the car to discuss the noise; however, Mr. A was "defiant and would not respond" to the request to get out of the car. The subject member indicates that he asked Mr. A "numerous" times to exit the vehicle before Mr. A finally opened the vehicle door and stepped out. Upon Mr. A exiting the vehicle, Constable C asked Mr. A why he turned up the music again and one of the female passengers, later identified as Ms. J, yelled out: "He didn't turn up the fuckin' music I did."2
According to Mr. A's statement, Constable C advised him to step out of the vehicle, as he was under arrest for disturbing the peace for turning the music up. Mr. A states that he told the subject member that he did not do it and that he was not going to jail for something he did not do. Mr. A advises that although he had opened the vehicle door, he did not step out. He says that Constable C asked him to step out again and at that point, J stated that she had turned up the music. Mr. A states that he then stepped out of the vehicle. Mr. A concedes that he drank six or seven beers that evening.
Constable C testified that Mr. A stepped out willingly after being asked repeatedly. Constable C's evidence is that he noted a strong odour of alcohol on Mr. A's breath and that Mr. A became belligerent and started swearing and stated that he had done nothing wrong. According to Constable C, it was at that point that he told Mr. A that he was under arrest for obstruction (of a police officer). Constable C testified that he decided to arrest Mr. A for obstruction because "he was obstructing me at the time [...] from basically my impaired investigation that I was doing because every time I came out all of a sudden I was faced with Mr. [A] and wasn't able to deal with my impaired properly."
Constable C then reached out and grabbed Mr. A's left arm in an attempt to place him under arrest. However, Mr. A pulled away and immediately turned around and stood with his back facing the subject member. Constable C's evidence is that Mr. A raised his arms in a "flexing motion and tensed up." The subject member repeatedly told Mr. A to stop resisting but he was "defiant and would not respond to verbal commands." At that point, Constable C radioed for backup. He says that he then reached around and grabbed Mr. A in a "headlock" and pulled him to the ground near the right side of the vehicle. Mr. A's evidence is consistent in terms of the headlock.
It is the evidence of Constable C that Mr. A continued to resist while on the ground and therefore he kept a "firm hold" on his head in order to control him. Mr. A recalls that his hands were behind his back and he was attempting to keep his head from "smashing the pavement." While the subject member and the complainant were struggling on the ground, one of the female passengers, Ms. J, exited the vehicle, yelling at Constable C to let Mr. A go. According to Constable C, she then jumped on his back and repeatedly hit him on the right side of the head. Constable K (now H), who arrived at the scene shortly thereafter, noted "a female subject on Cst. [C]'s back hitting and punching him in the head." Ms. J stated that she was pulling at Constable C's arm.
According to his general occurrence report, Constable C radioed again for backup. He observed Mr. A clenching his fist and becoming more combative. Constable C testified that Mr. A tried to pull his arm away, trying to loosen the headlock and that he was struggling so much that he rolled from his stomach onto his back.
A group of people had gathered around and Constable C noted that he "heard friends of [A] yelling at [A] to stop resisting and stated that he is going to jail either way." He also noted that he feared grievous bodily harm, as he was surrounded by people who might turn on him. Constable C testified that he was also concerned about his pistol and that he lay on his pistol to ensure that nobody would grab it and use it against him.
Backup did arrive and according to the various general occurrence reports filed by the subject members, Mr. A was struggling with Constable C on the ground. In his general occurrence report, Constable D related that when he arrived he noted a female on Constable C's back and the member was struggling with a male, who he observed to be resistant and trying to push Constable C off. He further noted in his general occurrence report that he initially pushed the female (Ms. J) off Constable C's back. Constable D's evidence indicates that at one point he placed his knee on Mr. A's neck and head area in order to restrain him. Constable D's evidence is that Mr. A then placed both his hands underneath his body. The member yelled at him to bring his arms out but he would not comply. Constable D and Constable C were able to pull Mr. A's arms out from underneath him and then handcuff him. Constable D also noted that the youths, who were seated on the curb, were yelling at Mr. A to stop resisting. Constable D noted injuries to Mr. A's face and he was taken to the hospital for medical attention prior to being taken to the detachment for processing.
According to Constable K's general occurrence report, she observed four or five youths standing on the sidewalk. She yelled to them to sit on the curb and not to move. She then saw Constable C struggling with a male on the sidewalk and heard him yelling at the male to stop resisting and to put his hands behind his back. Constable K noted in her general occurrence report that Constable C's face was bleeding. She grabbed Ms. J's arms and placed her in handcuffs with the assistance of another officer, Constable Watson. She was placed under arrest for assaulting a police officer. Ms. J was then placed in the rear of a police vehicle.
Corporal E arrived at the scene after Mr. A and Ms. J were in police custody.
As a result of this incident, Mr. A was charged with "stunting" under the provincial highway traffic legislation and with obstructing a peace officer by resisting arrest, pursuant to subsection 129(a) of the Criminal Code. Ms. J was charged with assaulting a police officer. The criminal charges were stayed at trial by the Crown in 2008, due to the conflicting nature of the evidence at trial.
First Allegation: Constable C unlawfully arrested and detained Mr. A.
Mr. A was arrested for obstructing Constable C from his impaired investigation. Constable C testified that he was obstructed from conducting his impaired investigation because "everytime I came out all of a sudden I was faced with Mr. [A]."
Obstruction of a Peace Officer
Under subsection 129(a) of the Criminal Code, anyone who resists or wilfully obstructs a peace officer in the execution of his duty has committed an offence. There are three elements to the offence of obstruction: there must be an obstruction, the peace officer must be in the lawful execution of his duty, and the person obstructing must have done so wilfully.
All three of these elements must be satisfied in order for the arrest of Mr. A to be lawful. In this case, it is evident that Constable C was in the lawful execution of his duty in writing out a ticket for Mr. I and investigating a possible impaired driving offence. However, the other two elements of the offence are not supported by the evidence.
It is not clear what constituted the "obstruction". Constable C's statement that he was obstructed from conducting his impaired investigation because "everytime I came out all of a sudden I was faced with Mr. [A]" is vague and does not fully disclose how Constable C was prevented from performing his duties.
However, it is apparent that Constable C was concerned about the loud music given he approached the stopped vehicle on two occasions to address the occupants about it. That being said, in the often challenging situations that police officers may find themselves in, it is difficult to understand how loud music would actually interfere with, or prevent an investigation, and be elevated beyond more than an annoyance or distraction. Indeed, loud, blaring music does not distract or interfere with police officers' execution of their duties when they enter a bar looking for a suspect or to break up a fight and arrest people for assault. Accordingly, it may be that the principle of de minimis non curat lex applies in this case. The act is so trifling and transient, it is not worthy of being criminalized.
In addition to this, there was evidence suggesting that Mr. A was not the responsible party. Constable C admitted that he did not know who had turned up the music in the car and Ms. J, at one point admitted that it was she who turned it up. Further, Mr. A repeatedly denied turning up the music and complied with Constable C's request to turn down the music each time. Ultimately, Constable C was faced with conflicting evidence of a trivial event. Perhaps this should have signalled to him that there was a more expedient way to deal with the situation.
Officer Safety
The lack of awareness for officer safety concerns played a role in this arrest and the unfolding of this incident. 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 primary objective of any intervention is public safety. Police officer safety is essential to public safety. 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.
Constable C was a lone police officer conducting an impaired driving investigation, and at the same time, attending to a car full of intoxicated teenagers, who were rude and insolent with him. While he demonstrated good judgment and common sense by ignoring Mr. A's first outburst with respect to slamming the door, the situation changed when he approached the occupants about the loud music. Given the attitude of Mr. A and Ms. J, it would have been prudent for Constable C to have called for backup and waited for it to arrive as opposed to returning to the vehicle and asking one of the occupants to step out.
Constable C testified that he focused his attention on Mr. A, asking him to step out the car, because he believed that Mr. A "might cause [him] a little bit of problems [...]." Indeed, disorder ensued. The situation quickly escalated out of Constable C's control. Constable C found himself facing potential "grievous bodily harm." He was struggling with two people and having to contort his body in order to lie on his sidearm to protect it from being grabbed and used against him. This could have been prevented had Constable C called for assistance and waited for its arrival.
Conclusion
Accordingly, I find that Constable C's arrest of Mr. A for obstruction was unjustified and unreasonable, as Constable C lacked the requisite grounds to arrest Mr. A. While Constable C may have possessed the subjective grounds necessary for the arrest, the facts do not support the existence of objective grounds.3 First, it is difficult to reasonably believe that loud music in a car could actually prevent an officer from carrying out his duties. Second, there was conflicting evidence about whether Mr. A was responsible for the loud music. Indeed, another party was claiming responsibility. In conclusion, it is difficult to reasonably conclude from the facts that the objective grounds existed for arresting Mr. A for obstruction of a police officer.
Finally, aside from the lack of reasonable grounds for the arrest, the circumstances surrounding the arrest are troubling with respect to the lack of attention given to officer safety concerns and the resulting disorder which ensued. I am particularly concerned about the lack of risk assessment conducted by Constable C, when he asked Mr. A to step out of the car. A more prudent course of action would have been to call for backup and wait for its arrival prior to asking Mr. A to exit the vehicle. The presence of another police vehicle and other police officers may have been enough to keep the entire situation orderly and calm.
Given that Mr. A's arrest was unjustified and unreasonable, it follows that his subsequent detention was unreasonable.
Finding: Constable C's arrest of Mr. A was unjustified and unreasonable.
Recommendation: That a senior member of the RCMP review with Constable C the circumstances giving rise to this incident and the lack of attention given to officer safety concerns.
Second Allegation: Constables C and D used excessive force during Mr. A's arrest, constituting the criminal offence of assault.
Mr. A alleges that Constables C and D used excessive force during his arrest, constituting physical assault. There is no dispute that force was used during his arrest.
The Commission does not have jurisdiction to determine whether an RCMP member committed the Criminal Code offence of assault; that is a determination made by the courts. This Commission is, however, empowered by statute to make findings as to whether an RCMP member used excessive force to carry out his or her duties.
The Criminal Code justifies the actions taken by peace officers in doing anything that they are required or authorized to do in the administration or enforcement of the law. However, where an RCMP member exceeds their lawful authority during an arrest, their conduct will be improper and any use of force will be excessive. Accordingly, based on the fact that Mr. A's arrest was unjustified and unreasonable, any force used during his arrest constitutes an excessive use of force.
Notwithstanding, the excessive force used in this case is related to the improper nature of the arrest, and not to the actual force used. For this reason, I decline to make a recommendation with respect to this allegation.
Finding: The force used during Mr. A's arrest was unreasonable.
Third and Fourth Allegations: Constable D and an unidentified member used excessive force during the arrest of Ms. J, constituting the criminal offence of assault.
As stated above, the Commission does not have jurisdiction to determine whether an RCMP member committed the Criminal Code offence of assault; that is a determination made by the courts.
Ms. J complains that Constable D and an unidentified member, likely Constable K, used unnecessary and excessive force in her arrest.
Ms. J's situation is different than that of Mr. A. Ms. J was arrested for assaulting a police officer. Her arrest was justified and reasonable. The Criminal Code empowers police officers to use reasonable force in the administration and enforcement of the law.
The evidence reveals that Ms. J exited the vehicle and physically interjected herself into the situation. She jumped on the back of Constable C and repeatedly hit him in the head. I do not accept that Ms. J's only involvement in the struggle was simply pulling at Constable C's arm. Based on the consistent and credible evidence of Constables C and K, I am satisfied that Ms. J was hitting/punching Constable C in the head.
Moreover, when Constable D arrived on the scene Ms. J was still on top of Constable C and he had to pull her off of him. Her dangerous, aggressive behaviour was completely unwarranted and heightened the seriousness of the situation.
Accordingly, the fact that Constable D pulled her off of Constable C's back in order to prevent her from further hitting the police officer in the head does not constitute an excessive use of force. It was a necessary and reasonable use of minor force. The unidentified officer's, likely Constable K's, use of force constituted taking hold of her arms and handcuffing Ms. J, which was completely justified in the circumstances and in accordance with RCMP policy relating to the arrest of suspects.
Finding: Constable D and Constable K used necessary and reasonable force on Ms. J during her arrest.
Sixth Allegation: Corporal E obstructed the course of justice by failing to commence an investigation into the complaint filed with the RCMP on October 28, 2005.
Seventh Allegation: Inspector F (retired) obstructed the course of justice by failing to commence an investigation into the complaint filed with the RCMP on October 28, 2005.
Eighth Allegation: Staff Sergeant G obstructed the course of justice by failing to commence an investigation into the complaint filed with the RCMP on October 28, 2005.
The Commission does not have jurisdiction to determine whether the subject members committed the Criminal Code offence of obstruction of justice in failing to conduct a statutory investigation into the complaint which Mr. B lodged with the RCMP on October 28, 2005; that is a determination to be made by the courts. In this particular case, the RCMP, acting on the advice of Crown counsel, decided not to lay charges of obstruction of justice against the subject members.
As acknowledged by the RCMP, this did not absolve the subject members of improper conduct in terms of neglecting to fulfill their duty to conduct an investigation into Mr. B's original complaint. While Mr. A is satisfied with the RCMP's disposition of the neglect of duty allegations, it is surprising that the RCMP could fail to act upon a complaint from legal counsel that was lodged directly with the RCMP and followed up with written correspondence. It is difficult to understand how this could have been overlooked. In fact, there is a suggestion that this was a second occurrence involving one of the parties. This does not serve to inspire confidence in the RCMP's handling of complaints nor investigations.
Finding: The Commission does not have jurisdiction to determine whether the subject members committed the Criminal Code offence of obstruction of justice; however, I agree with the RCMP's disposition of the allegations relating to neglect of duty.
Comment
In his request for review, Mr. B complains about the lack of information contained in the disposition letter to make the reasons for decision meaningful. I agree, there was no detail or reasons given with regard to the allegations of excessive use of force regarding Mr. A and Ms. J. The only reference made to those allegations was: "[...] I find that no unlawful or excessive force was used in the arrest of Mr. [A] or Ms. [J]. I base this finding on the observations made by independent witnesses and investigative material." Furthermore, no finding was made in relation to the allegation that Mr. A was unlawfully arrested and detained.
A basic tenet of appropriate behaviour expected of RCMP members and enshrined in section 37 of the RCMP Act is that all members perform their duties promptly, impartially and diligently. This applies equally to members who are responsible for investigating statutory, internal Part VII complaints. Moreover, the investigating member should also respond appropriately and proportionately to the gravity of the incident, and conduct themselves in a manner so as to adhere to all of the standards set out in section 37 of the RCMP Act. These elements of proper police investigations were discussed at length in my Final Report on Police Investigation Police (PIP Report).
Accordingly, the RCMP's Final Report is deficient in terms of addressing the allegations of unlawful/unjustified arrest and detention and excessive use of force. The RCMP gives cursory consideration to the use of force allegation and provides no analysis or reasoning for its finding. Lastly, the Final Report makes no mention of the allegation of unlawful arrest and detention. While this may be an oversight, it does not foster confidence in the police investigating police.
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 The unidentified subject member was later identified as Constable H.
2 An independent witness, L, who owns a small business across from where the incident occurred, witnessed much of the episode. She recalls seeing someone from the back seat of the stopped vehicle lean forward into the front seat and turn up the volume of the music. Ms. L recalls the music being very loud and believed the occupants of the vehicle were "antagonizing" the police officer.
3 For an arrest to be valid on the basis of reasonable and probable grounds, the police officer must not only subjectively believe that he has reasonable and probable grounds to make an arrest, but those grounds, in addition, must be justifiable from an objective point of view: R. v. Storrey, [1990] 1 S.C.R. 241.