Chair's Interim Report – Incident Related to Improper Arrest, Irregularity in Procedure, Neglect of Duty and Service

RCMP Act Paragraph 45.42(3)(a)

Vetted version for posting

October 27, 2009

Synopsis

On August 6, 2008, Constable B of the Fort St. John RCMP Detachment in British Columbia received a telephone call from Mr. F whose parents owned a property in the area. Mr. F explained that his parents had executed a power of attorney authorizing him to act on their behalf with respect to any of their real estate holdings. He alleged that his sister, Ms. A and Mr. C were residing at his parents' property in Fort St. John without lawful right. He forwarded by facsimile various legal documents to Constable B including an order of possession.

Constable B attended the property in question along with Constable D and located a woman sitting outside. She identified herself as Ms. A and indicated that she was there alone. Constable B advised her that she was under arrest for unlawfully being in a dwelling-house and transported her to the detachment. She was later released after signing a promise to appear and an undertaking, which included a term that she not attend the residence except in the presence of a police officer for the purpose of picking up her personal property.

Constable B prepared a report to Crown counsel recommending a charge of unlawfully being in a dwelling place. Crown counsel did not approve the charges against Ms. A.

Ms. A complained that Constable B and an unknown member, later identified as Constable D:

1. arrested her without grounds and without a warrant;
2. became involved in a civil matter;
3. refused to consider evidence provided to them;
4. failed to allow her to be properly dressed prior to leaving her home;
5. failed to advise her as to the meaning of the undertaking she had signed; and
6. failed to accompany her to her home so that she could remove personal items and tend to her animals.

The RCMP investigated the complaint and did not support any of Ms. A's allegations against the members.

For the reasons outlined below, I am not satisfied with the RCMP's disposition of Ms. A's complaint, as I find that Constable B's arrest of Ms. A was unreasonable under the circumstances.

Overview of the Process

On August 13, 2008, Ms. A complained to the Commission for Public Complaints Against the RCMP (the Commission) about the conduct of Constable B and Constable D.

Pursuant to the RCMP Act (the Act), the complaint was investigated by the RCMP. According to the Act, on completion of the investigation, the RCMP Commissioner (or his delegate) shall send his Final Report to the complainant summarizing the results of the investigation and any action taken to resolve the complaint.

The RCMP's Final Report dated May 25, 2009 did not support Ms. A's complaint.

Ms. A was not satisfied with the RCMP's disposition of the complaint, and on July 15, 2009, she asked the Commission to review the matter. The Commission received the investigation documents from the RCMP on August 20, 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 RCMP members. Rather, its role is to inquire into complaints independently and to reach conclusions after an objective examination of the information provided.

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.

My findings, as indicated below, are based on a careful review of the material before me including the RCMP operational file, Constable B's notes and electronic reports, the statements of Constable B, Constable D and Ms. A, the public complaint investigator's report, as well as applicable law, RCMP policy and other relevant material.

Analysis

Before dealing with the substance of Ms. A's complaint, I first wish to address two preliminary issues. The first relates to Constable D's status as a subject member. The RCMP Final Report indicated that the public complaint investigator, Sergeant E, determined during her initial meeting with Ms. A that the thrust of the complaint did not really involve Constable D and accordingly Sergeant E removed his name from the revised complaint which she prepared on the RCMP complaint form. However, Ms. A refused to sign this revised complaint notwithstanding that Sergeant E maintained that Ms. A told her that the revised complaint captured the essence of her concerns and that Sergeant E contacted her a second time to confirm this.

In the normal course of a public complaint investigation, investigators must ensure that their actions do not lead to a perception of bias. I would therefore expect that when an investigator wishes to limit the complaint in any significant way from that which is set forth and clearly articulated in the original complaint, it would be incumbent upon that investigator to not merely have the complainant sign a new complaint but to explicitly, in writing, acknowledge the limitation or abandonment of prior allegations. Although that was not done in this case, I am satisfied from other evidence before me that, as the changes relate to removing Constable D from the allegations, Ms. A was in agreement.

First, while Ms. A has raised a number of focussed concerns relating to the RCMP disposition of her complaint in her request for review, she did not raise a concern about this issue. Second, the facts of this case support that Constable B had the lead and was the main actor in relation to the issues of which Ms. A complained. Constable D appears to have played only a minor supporting role in the events and the matter could be reasonably disposed without his inclusion. Accordingly, the allegations addressed below reflect this change.

However, another aspect of the revisions cannot be dismissed as readily. Ms. A's request for review challenged the RCMP revision of her complaint as articulated by the Commission. She complained that two of her allegations were ignored by the RCMP. Her main issue was that in rewriting her allegations the RCMP restricted her complaint that she was arrested without grounds and without a warrant to a complaint that Constable B failed to show her an arrest warrant or explain the reason for her arrest. The difference was critical, in that it allowed the RCMP to avoid any analysis of the validity of the grounds for the arrest.

If such circumstances arise in the future, to preserve the integrity of the public complaint process and eliminate a perception of bias, I would expect that in addition to obtaining the complainant's signature acknowledging the new wording, the investigator would also have the complainant execute a statement explicitly withdrawing such an integral part of the complaint (e.g. I hereby withdraw my allegation that Constable B arrested me without grounds.) Absent written acknowledgement of the complainant's agreement the investigation should, at a minimum, proceed to investigate all of the original allegations.

It should be noted that although the public complaint investigation did not assess the grounds for the arrest, the investigator did question Constable B on that issue and I find that there was sufficient information on file to review that issue. Notwithstanding that the investigation contained this information; the lack of attention to that issue because of the restructuring of Ms. A's complaint raises the perception of bias.

Factual Background

The factual background is based largely upon Constable B's occurrence reports and report to Crown counsel, as his notebook entries were minimal in nature and did not commence recording events until after Ms. A's arrest. This information was supplemented by Constable B's later statement to the public complaint investigator. Constable D, who was present as backup, kept less detailed records. Finally, Ms. A terminated her statement part way through her interview by the public complaint investigator and did not provide a complete recount of events.

On August 6, 2008, at approximately 11:35 a.m. Mr. F placed a call requesting police assistance in removing his sister, Ms. A, and Mr. C from his parents' property in Fort St. John.¹ Constable B received the telephone call. Mr. F explained that his parents had executed a power of attorney authorizing him to act on their behalf with respect to any of their real estate holdings. He alleged that his sister and Mr. C were residing at his parents' property in Fort St. John without lawful right. He also suggested that they had fraudulently represented themselves in order to get the hydro connected. He advised that he planned on having it disconnected on August 12, 2008 and anticipated interference. He concluded by indicating that he would like to see his sister charged.

Mr. F forwarded by facsimile various legal documents to Constable B including an order of possession. Constable B reviewed the documentation as well as electronic police records which identified that the RCMP had previously been called to the property to assist in removing horses and dogs at the request of Mr. F's parents.

At approximately 5:20 p.m. Constable B drove to the property accompanied by Constable D who drove there in a separate police cruiser. Upon their arrival the members observed a woman sitting on the front steps with the front door slightly ajar through which the television could be heard. Constable B approached and asked for Mr. C. According to Constable B's narrative in the report to Crown counsel, Ms. A indicated that he should be back the following evening. Constable B then enquired about the woman's identity and she identified herself as Kelly A.

Constable B advised her that she was under arrest for unlawfully being in a dwelling-house. Ms. A replied that she was there legally and had a lease. However, she did not produce any documents at this time. Constable B followed Ms. A into the house while she retrieved her purse, turned off the television and locked the house. Constable B recorded that he read Ms. A her Charter rights and the police caution at 5:26 p.m. The following notebook notation indicated that Ms. A claimed to have a lease from her mother dating back to 2005 and that her brother was trying to get their mother's money before she dies.

Constable B transported Ms. A to the detachment. Constable B reported that en route to the detachment Ms. A stated that she "was just there cleaning up." She was later released after signing a promise to appear and an undertaking, which included a term that she not attend the residence except in the presence of a police officer for the purpose of picking up her personal property.

Constable B prepared a report to Crown counsel recommending a charge of unlawfully being in a dwelling place. Crown counsel did not approve the charges against Ms. A, as "there does not appear to be a substantial likelihood of conviction for a criminal offence and it is questionable whether or not it would be in the public interest to prosecute even if a technical offence was readily apparent and proveable"[emphasis added].

First Allegation: Constable B arrested Ms. A without grounds and without a warrant.

Second Allegation: Constable B became involved in a civil matter.

In her interview with the public complaint investigator, Ms. A stated that Constable B initially referred to a warrant for her arrest at the time that he took her into custody but that he failed to produce it or explain to her the reason for her arrest.

Constable B stated that he advised Ms. A that she was arrested for being unlawfully in a dwelling place. He denied having told her that there was a warrant for her arrest. Constable D did not recall any discussion of a warrant and stated that the reason that he and Constable B attended was because they had reason to believe that Ms. A was unlawfully in a dwelling place. This is also consistent with Constable B's notebook entries which not only indicate that he arrested Ms. A for unlawfully being in a dwelling-house but that when asked if she understood the grounds for her arrest she replied "yah."

I note that during Ms. A's interview, the public complaint investigator questioned her as to why, at the time of her arrest, she claimed to have a right to be on the property and that she possessed a lease, if she had not first been made aware of the grounds for her arrest. Ms. A indicated that she assumed that the police were there for that reason although Constable B did not tell her the grounds until he brought her into the detachment.

In this regard I prefer the evidence of the members, which is consistent and a reasonable depiction of their actions based upon the very considerations which drew them to the residence that night. On the other hand, Ms. A's recollection, as it relates to this issue, seems inconsistent, is confusing in that it jumps about temporally, and is incomplete in that she terminated her interview with the public complaint investigator before providing a complete account.

Civil Dispute

The RCMP's Final Report made similar findings relating to the search warrant but failed to address the second part of Ms. A's allegation, that Constable B arrested Ms. A without grounds.

Constable B's notes do not record the basis upon which he arrested Ms. A. The material disclosed by the RCMP did not include any notes or any electronic records prepared by Constable D. Constable B's electronic records confirm that he attended the A residence later on the day that he took Mr. F's complaint. He does not record the reason why he went to the property but it appears that his intention was to determine if Ms. A and Mr. C were at the property and, if so, to arrest them. That is what he did, at least with respect to Ms. A.

I take it from the earlier portions of Constable B's report to Crown counsel that the information supplied by Mr. F satisfied him that Ms. A was not lawfully on the property and that, if he found her occupying the dwelling, she would be committing a criminal offence. In his statement to the public complaint investigator, Constable B responded in the following manner to the key question relating to his rationale for believing that a criminal offence had been committed:

Sgt. E: at the beginning you mentioned that um this was a civil dispute at what point did you come to the conclusion that it was actually more of a criminal matter requiring an arrest

Cst. B: talking with [F] he he listed a like throughout the years throughout an ongoing period of approximately two years the attempts they've made at uh removing removing [A] from the residence and they were taking legal steps the whole way of getting power of attorney over over all the property of the parents that they had to have legally done that and they went through the eviction papers and they've also uh during this process I guess [A] had been falsifying documents going to different places this is a report from uh [F] saying she's been falsifying documents having power put on in the residence having different stuff attached to the residence and then uh [F] would have to turn around and have the stuff cancelled uh this was part of the original complaint that they were sending over a company to disconnect the power and felt that there would be a problem um upon them attending and they did request that anyone found on the property um because it was in his name being power of attorney that he would wanted uh action done against them for being unlawfully at that place so it was at that point after showing all this documentation showing the history that uh I I did believe that it was a criminal matter where [A] was unlawfully on this piece of land after he's made these over the last couple of years has been diligent in taking over his parents stuff and she and uh [A] (inaudible) was refusing to vacate a location had never paid had never paid anything for being on the location as well [emphasis added, sic throughout].

This description lacks clarity with respect to Constable B's appreciation of the key elements of the offence. However, what is clear from this explanation is that Constable B was satisfied with Mr. F's story and supporting documentation without ever hearing Ms. A's version. It does not appear that Constable B gave consideration to letting the civil processes deal with the matter.

He was well aware that the parties were involved in a civil dispute. He commenced his interview with the public complaint investigator by explaining that Mr. F had contacted him and advised him that he was involved in a civil dispute with his sister. He also made a number of references to the siblings' dispute in his report to Crown counsel, the document in which he recommended the charge of being unlawfully in a dwelling-house. The fact that a civil dispute existed over the very rights Mr. F was attempting to advance by enlisting the aid of the RCMP in dealing with the matter in the criminal context should have resulted in Constable B proceeding cautiously. It did not.

He reported that the copies of documents provided established that Mr. F had the authority to act on his parents' behalf in relation to their real property. I take it that he was satisfied that the parents owned the property in question because their names were listed as such on the documentation relating to the application pursuant to the Residential Tenancy Act, SBC 2002, c. 78, as amended.

Constable B wrote in the report to Crown counsel that the documents established that Ms. A had been evicted² from the residence. If Constable B viewed this to be the case,³ the specifics of the Residential Tenancy Act are clear as to what Mr. F needed to do. The RCMP material contained a synopsis of the law. The law was succinctly described by the RCMP in the Final Report on an unrelated file in which a member threatened to arrest a tenant, in similar circumstances, if the tenant did not vacate the premises:

I have considered the documents mentioned above and reviewed relevant portions of the Residential Tenancy Act. As a result, it is clear to me that, in circumstance where the Residential Tenancy Board has directed that a tenant vacate a premise, the enforcement of such an Order must be accomplished by way of application to the Supreme Court of British Columbia who may appoint a Bailiff to enforce the eviction. Police, in such circumstances do not have the jurisdiction to evict tenants from their premises.

It is important to note in this matter, however, that [the member's] stated reason for directing you to vacate the premises was not an enforcement of the Residential Tenancy Act, but the Criminal Code of Canada, as it was her belief that you had illegally entered the suite and were illegally on the premises subsequent to being legally evicted [emphasis in original].⁴

This fact situation is mimicked in the present case, except that the member did not merely evict the tenant without lawful authority for so doing but arrested her and recommended criminal charges. No evidence was provided to establish that Mr. F attempted to enforce the eviction by obtaining an order in the Supreme Court. Notwithstanding, he would have had to have engaged the Bailiff to enforce such an order. Even in cases of eviction the Act sets forth a specific protocol to protect both the landlord's and the tenant's rights. The use of the bailiff, who has expertise in this forum, protects those rights. The intervention of the police in this instance favoured the landlord, Mr. F, over the purported tenant. On this basis alone, I would find that Constable B became overly involved in a civil dispute.

However, aside from Constable B's apparent unfamiliarity with the Residential Tenancy Act, he had other indications that this matter was a civil dispute and not a criminal matter. The key document relied upon by Constable B was the order of the dispute residential officer. This document ordered Mr. C to provide vacant possession of the property⁵ but was silent as to Ms. A. The reason for this was contained in the accompanying reasons. The dispute resolution officer noted that Ms. A produced a lease in her name for a separate property and claimed to have a twenty-year lease for her parents' property to use for storage. The dispute resolution officer found that any such lease was of a commercial nature and outside his jurisdiction to review and found that as a result Ms. A had no standing before the tribunal.

He concluded by stating:

It is very apparent from the evidence submitted all the named parties, (and agents of the parties), that they parties were attempting to resolve the ownership, the legal status and the legal possession flowing from the ownership through the Residential Tenancy Act. The parties were advised that I was not in any manner issuing a decision on the matter which they stated was in the hands of lawyers and going to go Supreme Court [emphasis added, sic throughout].

It was quite apparent that the situation did not call for any urgent intervention. Absent any knowledge of the workings of the Residential Tenancy Act, there was sufficient documentation to alert Constable B to the fact that this was a civil dispute in which Ms. A's claims against the property were still unresolved and not a criminal matter which required police involvement. Accordingly, I find that Constable B unreasonably arrested Ms. A in that he lacked reasonable grounds to believe that she had committed an offence.

The Commission has previously reviewed cases in which members of the RCMP became overly involved in civil disputes. The result is often to place one person in an advantageous position over another when the matter should have been dealt with through a civil mechanism. The Commission has raised the lack of guidance in RCMP policy to aid members in determining when it is appropriate to intervene. In a 2008 review the Commission wrote:

The Commissioner indicated in PC-2000-1092 and PC-2003-0865 that, given the number of civil-related disputes that result in calls to the RCMP, relevant operational policy guidelines need to be established to provide guidance to members under these circumstances. If such guidelines and/or policies have not yet been drafted, it is recommended, once again, that this be done on a priority basis.⁶

On December 22, 2008, the Commissioner responded by confirming that a policy as recommended by the Commission had been drafted and was being finalized. The Commissioner also undertook to forward a copy of the policy once it was completed. The Commission has followed up on the status of the policy implementation but as recently as October 23, 2009, the RCMP had not published the new policy. I see no purpose in repeating my prior recommendations on this issue. However, it should be noted that the failure to draft and disseminate such a policy leads to unnecessary complaints and an inappropriate use of valuable police resources.

The fact that neither the public complaint investigator nor the author of the Final Report raised a concern about Constable B's involvement in the civil dispute further highlights the need for guidance in this area.

Criminal Charge – Being Unlawfully in a Dwelling-house

With respect to Constable B's reliance upon the charge of being unlawfully in a dwelling-house to arrest Ms. A, Constable B had to reasonably believe that the two essential elements of the offence had been committed. The first was that Ms. A was in the dwelling without lawful excuse. Even if Constable B arrived at a contrary view to mine, as to the lawfulness of Ms. A's occupation of the premises, he had to reasonably believe that Ms. A was occupying the premises with the intent to commit an indictable offence.

In the normal course, an officer may form this opinion based upon the very fact that the person is unlawfully in a dwelling-house. This is because the law presumes that a person so found intends to commit an indictable offence (e.g. theft). In this case, Constable B had reason to believe otherwise. He was already aware of the lengthy dispute over the property. Mr. F did not allege that his sister wished to commit any offence but only that she would not leave the property. At worst she was a squatter.

Furthermore, she offered up the explanation that she was cleaning up the residence which she said held her personal property and furnishings. Under these circumstances Constable B had sufficient information to negate the presumption that Ms. A was there to commit an indictable offence. As such he ought to have known that the offence had not been committed and that he had no grounds to arrest her.

Third Allegation: Constable B failed to consider evidence provided to him by Ms. A.

Ms. A advised the public complaint investigator that when she had been brought to the detachment, she produced documents which would prove that she had a right to be at the property. She maintained that Constable B refused to look at them. Ms. A was quite clear that she had the documents in her hands and even identified the area in the detachment where she purported to have had the exchange with Constable B.

In her request for review, Ms. A responded to the RCMP Final Report's observation that she cannot be seen on the video footage at the detachment with any documents in hand. She indicated that she meant that she had the documents in her purse which was in her hands and that the video footage should show hand signs to the effect that she offered the paperwork and Constable B refused. I find this to be a marked departure from her original version, as she was twice asked to confirm that she had the papers in hand. Furthermore, after reviewing the video tapes of the detachment I am unable to identify any point in time when Ms. A appears to proffer any documents to Constable B or any other member.

Constable D, who was not present for the entire time, could not recall any offer by Ms. A to produce documents. Constable B did not recall her offering to provide any paperwork on the arrest date but did recall that she came in to the detachment on August 8, 2009 with documentation, which was added to the file.

Given that at the time she was arrested Ms. A maintained that she was lawfully occupying the property, it seems illogical that she waited until she was at the police station to provide the documentation which she had brought in her purse. This is even more so given that during the ride back to the detachment, she explained why she was at the residence but apparently failed to mention the paperwork in her possession. Constable B stated that while at the house Ms. A was unable to provide a copy of the lease she claimed gave her the right to be on the property. This would have been a critical piece of evidence which Constable B would undoubtedly have wanted to review if it had been presented.

Certainly, prior to attending the residence, Constable B had reviewed not only all the documents forwarded by Mr. F but also the RCMP's electronic files and he included the documents later provided by Ms. A in his report to Crown counsel. While Constable B may have erred in the conclusions that he drew from these documents, I am satisfied that he made honest efforts to respond to Mr. F's complaints and his actions on the whole do not lead me to believe that he would have refused to consider such evidence.

Finding: Ms. A did not offer documents for Constable B to review prior to her release from custody.

Fourth Allegation: Constable B failed to allow Ms. A to properly dress prior to leaving her home.

Ms. A terminated the interview with the public complaint investigator prior to providing any particulars relating to this allegation. The RCMP did not address this issue, as it did not appear in the revised complaint.

Even after viewing the video footage of Ms. A at the detachment, it is not clear why she feels that she was inappropriately dressed. Ms. A can be seen to be wearing pants, a shirt and footwear. I note that the arrest took place in the late afternoon during the middle of summer and not the extreme weather conditions of winter.

I find no evidence to support that Constable B neglected to allow Ms. A to dress appropriately.

Finding: Constable B did not fail to allow Ms. A to dress properly after her arrest

Fifth Allegation: Constable B failed to advise Ms. A of the meaning of the undertaking she signed prior to her release.

During her interview with the public complaint investigator, Ms. A provided the following explanation, "[...] [Constable B] told me I had to sign some papers to be released why I never read the papers I didn't really understand what they meant I signed them because he said I had to and then they released me."

Constable B stated:

[...] we con [sic] started to do up the release papers I provided her with uh Promise to Appear with an attached Undertaking for being unlawfully in a dwelling house and I explained these forms to her I explained her court I explained um that the conditions on her undertaking were not to attend that location unless accompanied by a police officer to retrieve personal belongings only and I did inform her of that and I told her that failure to abide by these conditions is a separate offence for which she could be charged and she stated she understood and signed the form [...].

Constable B also stated that his standard practice is to read undertakings line for line to make sure the person to be released understands the conditions and he maintained that he read out the conditions to Ms. A.

Constable B's notes did not make any reference to Ms. A's release. His continuation report merely indicated that Ms. A was released on a promise to appear and an undertaking.

A review of the videotaped footage of the detachment revealed that Constable B and Ms. A were at the counter with what appears to be the release documents for more than five minutes. During part of that time Constable B can be seen filling in documents and Ms. A executing them. There are periods of time when it appears that Constable B is speaking with or reading to Ms. A prior to her signing documents.

The undertaking and promise to appear are written in standard language and signed by Ms. A. The focus of her concern appears to be the undertaking. I note that immediately above her signature is an explanatory section which explicitly set out that she did not have to sign the document.

Having regard to all of the evidence, I am satisfied that Constable B explained the nature of the documents which Ms. A signed.

Finding: Constable B advised Ms. A of the meaning of the undertaking she signed prior to her release

Sixth Allegation: Constable B failed to accompany Ms. A to her home so that she could remove personal items and tend to her animals.

Ms. A did not provide any particulars of this allegation prior to terminating her interview with the public complaint investigator. The only clarification stems from the rewritten RCMP complaint in which Ms. A is purported to complain that Constable B did not explain the availability of police officers to attend with her the residence to feed her cats.

Constable B stated that there was no mention of feeding the cats during Ms. A's release and that the issue did not arise until she came into the detachment a few days later. That request, handled by another member, was denied and Ms. A was told that a member could not be spared for an hour to allow her to feed her cats and that this was not a specified exception to the condition of the undertaking.

Constable B indicated that when he became aware of Ms. A's concern he worked diligently to complete the paperwork for the Crown counsel review so that Ms. A could attend court and seek a variance of the terms.

With respect to Ms. A's attendance at the residence to retrieve personal belongings, Constable B stated that he escorted Ms. A to the property for that purpose.

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 Mr. A's parents resided in Alberta at the time, as did he.

2 The evidence before me leads me to conclude that Constable B misapprehended or misstated this point. In fact, the eviction order specifically excluded Ms. A from its application. However, for the purposes of this analysis, Constable B's actions will be assessed against both factual scenarios, as in either instance Constable B's conduct was wanting.

3 When assessing the reasonableness of an arrest, consideration must be given not only to whether the objective elements of the purported offence exist but also to the member's subjective appreciation of the situation. See R. v. Storrey, [1990] 1 S.C.R. 241.

4 PC-2003-1582.

5 In his reasons, the dispute resolution officer noted that if the order was not complied with it could be filed with the Supreme Court for enforcement.

6 PC-2007-1499.