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

RCMP Act Paragraph 45.42(3)(a)

Vetted version for posting

November 9, 2009

Synopsis

On October 17, 2008, Mr. A was driving and passed a woman walking her dogs, and believed that the woman threw something at him. Mr. A stopped to confront her. The woman called the RCMP for assistance, and Mr. A left. The woman complained to the RCMP that she had been assaulted by Mr. A.

Constable B of the Langley RCMP Detachment responded to the request for assistance. Constable B then went to Mr. A's home, where he spoke with Mr. A's daughter. Mr. A arrived a few minutes later, and an argument ensued with the member. Mr. A was arrested, and claims he was injured during the arrest.

The RCMP investigated the complaint and found that Constable B lawfully arrested Mr. A, that he used only as much force as necessary, and that Constable B was not aware that Mr. A suffered from multiple sclerosis at the time of the arrest.

I am satisfied that Constable B was not aware that Mr. A suffered from multiple sclerosis at the time of the arrest; however, I find that the arrest was improper and therefore any use of force was excessive in the circumstances. Further, I will make comments on the issue of bias or partiality in the public complaint investigation.

Overview of the Process

On January 5, 2009, Mr. A complained to the Commission for Public Complaints Against the RCMP (the Commission) regarding the conduct of Constable B of the Langley RCMP Detachment.

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 Commissioner's Final Report dated February 24, 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 March 20, 2009. The Commission received from the RCMP the investigation documents relating to this matter on April 29, 2009. On June 22, 2009, the Commission determined that a further investigation into this complaint was warranted. The further investigation was conducted by the Commission and consisted of an interview of Mr. A's daughter, who was a witness to the October 17, 2008, events. I received the results of that further investigation on September 22, 2009. Further, on October 21, 2009, the Commission requested from the RCMP additional information on the reporting relationship between Constable B and Sergeant C, the investigator assigned to this public complaint. It received the results of that further investigation on October 29, 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 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 the careful review of Mr. A's complaint, as well as the RCMP's operational material, and Final Report. As well, a further investigation was carried out and Mr. A's daughter was interviewed.

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 17, 2008, Mr. A was driving from his home in Langley, British Columbia to the United States to get gas. On his way, he passed a woman walking her dogs. He alleges that she threw something at his car, and he stopped to confront her. When she called the RCMP for assistance, he got back in his car, and proceeded about his business. She complained to the RCMP that she had been assaulted by Mr. A.

Constable B of the Langley RCMP Detachment responded to the request for assistance. The complainant stated that Mr. A had assaulted her. Constable B then went to Mr. A's home. When he first arrived, Mr. A was not home, but Constable B spoke to his daughter. Mr. A arrived a few minutes later, and asked the member if he had arrested the woman. Constable A discussion ensued, during which Constable B informed Mr. A that the woman was seven months pregnant. Mr. A denies assaulting her.

Constable B remembers that Mr. A came up to him and started chest butting him, and was aggressive and combative. Both Mr. A and his daughter¹ deny this.

Constable B arrested Mr. A. In doing so, Constable B states that he took Mr. A's wrist and pulled it to the small of his back. He brought Mr. A to his police vehicle, and had to struggle to grab Mr. A's other hand in order to pull it behind his back to handcuff him. According to Mr. A's daughter, who witnessed the arrest, Constable B grabbed Mr. A's right arm and pulled it back, at which point Mr. A lost his balance and fell against her car, which was in the driveway.

Eventually, Mr. A was led to the police vehicle where he complained that he was in pain, and could not sit in the back of the police vehicle with his hands handcuffed behind his back. After discussion, Constable B handcuffed Mr. A's hand in front of him, which allowed him to sit in the vehicle. Following a discussion between Constable B and Mr. A, Constable B released Mr. A, without charges.

Mr. A suffers from multiple sclerosis. According to his daughter's statement, Mr. A has poor balance and cognitive difficulties. In 2006, he had surgery to replace his right shoulder. He alleges that the incident in question contributed to further damage to his shoulder.

First Allegation: Constable B unlawfully arrested Mr. A.

Second Allegation: Constable B used excessive force when arresting Mr. A.

Analysis

In order to determine whether the amount of force used to arrest Mr. A was reasonable, I must first determine whether the member had grounds for the arrest. If the member had no grounds to arrest Mr. A, then any use of force would be unreasonable and excessive.

At common law, an arrest can be affected with or without a warrant. When a police officer does not have a warrant, the arrest will be considered lawful only if the police officer has reasonable grounds to believe an offence was committed. According to subsection 495(1) of the Criminal Code, a peace officer can arrest without a warrant.

A police officer must articulate that he has reasonable and probable grounds to arrest a person in a given situation. Therefore, suspicious circumstances will not be enough to justify an arrest. Moreover, the grounds must be justifiable from an objective point of view; a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest.²

However, because assault can be either an indictable or a summary conviction offence,³ subsection 495(2) of the Criminal Code provides that a peace officer shall not arrest a person without a warrant unless there is reason to believe that an arrest was necessary to prevent the continuation or repetition of the crime, to identify the suspect or to secure evidence. Given that Mr. A readily identified himself to the member, there was no need to arrest to establish his identity. Furthermore, there was no immediate need to secure or preserve evidence and there was no evidence in the investigation file to suggest that Mr. A would fail to attend court or flee the jurisdiction. With regards to whether the arrest was necessary to prevent the continuation or repetition of the offence or the commission of another offence, there is no articulation in the investigation file that this was an issue that was considered. In fact, it appears from the information before me that there was no urgency in the matter, and no significant concern for public safety or for the safety of the complainant, who was unknown to Mr. A. My review of the relevant material suggests that Constable B did not consider whether the public interest, having regard to all of the circumstances, could be satisfied without an arrest.

Reasons for arrest

During the public complaint investigation, Constable B was asked the grounds on which he arrested Mr. A. His response was that when Mr. A arrived at his home, he was upset and asked if the complainant was in the police vehicle. Constable B relates:

And at this point he's coming towards me and he's basically getting right up against me and saying you better have that fucking bitch in your car. And I said you better back off sir. And he continued on, kind of forced me back to the driveway at that point. I said, you're under arrest for assault.

Later in the interview, Constable B specifies:

And he got out of his vehicle and, and approached me and starts basically chest butting me and telling you better have that fucking bitch in my car. And he's not listening to me. That's an assault on me just as well cause it wasn't her so, then I arrest him for assault.

When asked to clarify whether he arrested Mr. A for the assault on the complainant or the assault on himself, Constable B responded: "A bit of both. More, more the assault on her and I'm kind of used to people in that I don't take it as a, as a, any personal against me." In other words, Constable B was unable to articulate the reasons of the arrest, which lends further weight to the conclusion that proper consideration was not given when making the decision to arrest Mr. A.

Mr. A's daughter, who witnessed the whole situation, submitted that her father did not chest butt Constable B. Her statement to the Commission was credible, and she did not try to minimize her father's actions and behaviour. Mr. A claims that if he had done it, he would have lost his balance and fallen down, given that he suffers from multiple sclerosis. I find that this is probable, given Mr. A's medical condition. Further, during the public complaint investigation, Constable B's first version of events does not include Mr. A "chest butting" him. It is only later that he adds that Mr. A was chest butting him. I do not doubt that Mr. A was argumentative, and getting up close to the member, but I do not believe that he chest butted Constable B. Constable B's initial version was that Mr. A was "in [his] face," and after some questions from the investigator, he added that Mr. A was chest butting him.

As such, Constable B arrested Mr. A on the basis of the alleged assault on the complainant. That arrest was improper.

Escalation

The information before me tends to support the conclusion that Constable B reacted to Mr. A's anger by arresting him. As I previously stated, there is no question that Mr. A was being confrontational. However, Constable B is a professional. He must remain calm, exercise patience and strive to de-escalate situations, rather than escalating them.

The RCMP's Incident Management/Intervention Model (IM/IM) is used to train and guide members in the use of force. The IM/IM promotes risk assessment and depicts various levels of reasonable intervention options. Among others, the IM/IM is based on the principle that the best strategy causes the least harm or damage. The model stresses the importance of sound communication skills on the part of RCMP members and the value of verbal intervention skills in de-escalating potentially violent situations. RCMP members are trained to be professional, objective, polite, patient, encouraging and calm. They are advised to manage their emotions and to be helpful, non-defensive and empathetic. I am concerned that Constable B ignored the guidance of the IM/IM. This resulted in the escalation of the situation and heightened the tension between the two men. Instead, Constable B should have been applying the principles of the IM/IM and invested more effort into de-escalating the situation.

With regards to the alleged improper use of force, the Criminal Code empowers police officers to use reasonable force in the administration and enforcement of the law. As the arrest was without grounds in this case, it follows that any force used in effecting that arrest was also improper. As such, I find that the member's use of force towards Mr. A was improper and therefore excessive.

Finding: As the arrest on Mr. A was improper, it follows that the force used by Constable B was also improper and excessive.

Third Allegation: Constable B demonstrated improper attitude by not recognizing signs of Mr. A's medical condition, multiple sclerosis.

Constable B advises that he is familiar with the symptoms of multiple sclerosis, as his sister suffers from the condition. He submits that he could not see the symptoms of the condition in Mr. A.

While Mr. A admitted during the public complaint investigation that he does not display the usual signs of a person living with multiple sclerosis, he states that his daughter told Constable B that he suffered from the condition. His daughter confirmed this.

However, Constable B removed the handcuffs from Mr. A once he says he became aware of his condition. The Commission is faced with two conflicting and credible versions. As such, I cannot find that Constable B demonstrated improper attitude by not recognizing the signs of the medical condition.

Finding: Constable B did not demonstrate improper attitude by not recognizing the signs of Ms. A's medical condition.

The public complaint investigation

It should be noted that the investigation of this public complaint was undertaken by Sergeant C of the Langley RCMP Detachment.

In the statement Constable B provided during the public investigation process, he mentions that, on the night of the incident, he attempted to contact Sergeant C a number of times for guidance, but was unable to reach her. I am concerned that Sergeant C undertook the investigation of this complaint despite her supervisory role with respect to Constable B. The further investigation into this complaint showed that while Constable B's regular supervisors are one of three corporals at the detachment, Sergeant C was in fact acting as Constable B's direct supervisor during the relevant period, as two of the three corporals were on leave. As such, it would have been preferable she not be engaged in the complaints process as it affects the perception of an impartial investigation.

The appearance of conflict of interest or bias is furthered by the fact that Sergeant C did not interview, or attempt to interview, Mr. A's children, who were witnesses of the events of that night. This does not help alleviate the perception of a conflict of interest.

Pursuant to section 8 of the Commissioner's Standing Orders⁴ (CSOs), a member responsible for conducting an investigation of a complaint must conduct it objectively and neutrally with recognized investigative procedures. The investigation must also be conducted impartially and diligently and a member cannot investigate a complaint where that member may be in a conflict of interest situation.

A basic tenet of appropriate behaviour expected of RCMP members and enshrined in section 37 of the RCMP Act is that the investigator be free from bias or conflict of interest, either actual or perceived. The investigating member should also respond appropriately and proportionately to the gravity of the incident, respond in a timely fashion, and conduct themselves 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 recent Final Report on Police Investigating Police⁵ ("PIP Report").

As I acknowledged in my PIP Report, the RCMP did not have sufficiently clear policies in place at the time of the investigation to guide members when investigating complaints where a conflict of interest may arise. In fact, the review of RCMP files conducted during the research phase of the PIP Report revealed that in 25% of cases where RCMP members were assigned to, and completed, investigations into other members, the investigators knew their subjects personally.

Notwithstanding the foregoing, the issue in this case is not limited to whether an actual or perceived conflict of interest existed: the existence of a perceived conflict of interest is apparent. However, I must also determine whether Sergeant C, faced with this conflict of interest, was able to professionally and with integrity conduct a public complaint investigation that was free from real bias.

The available information indicates that Sergeant C's investigation was conducted in a timely manner. She interviewed Mr. A and Constable B, and she used an appropriate line of questioning in doing so. However, she failed to interview Mr. A's two adult children, who were witnesses to the events, and her conclusions on the application of the much used relevant part of the Criminal Code were erroneous.

On the balance of probabilities, I do not find that Sergeant C's investigation was biased or that it lacked integrity. However, it is undoubtedly preferable for a public complaint investigator to originate from a detachment other than that of the subject member, if practicable. Further, even if an investigator is not a regular supervisor of the member subject to the investigation, the fact that the investigator was at any time acting in a supervisory role with respect to the member should preclude them from investigating public complaints concerning that member.

In light of the recommendations detailed in the PIP Report in respect of which the Commissioner of the RCMP stated that the RCMP is currently drafting a policy to guide members in these types of situations, I do not feel that it is necessary to make any recommendations in this case.

Finding: Despite the existence of a perceived conflict of interest, I find that Sergeant C conducted an unbiased public complaint investigation.

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 daughter witnessed the interaction between her father and Constable B.

2 Canadian criminal procedure, Salhany, Roger E., 6th ed., Aurora, Ont. Canada Law Book, c2005.1 v., para. 3.94.

3 Criminal Code, R.S.C. 1985, c. C-46, section 270.

4 Commissioner's Standing Orders (Public Complaints) [RI-32].

5 Police Investigating Police – Final Public Report.