Chair's Interim Report – Incident Related to Improper Attitude

RCMP Act Paragraph 45.42(3)(a)

Vetted version for posting

December 15, 2009

Synopsis

Mr. A was involved in a protracted legal dispute with his former girlfriend, Ms. B, concerning custody and access rights to their daughter. At one point, he was charged with criminal harassment and uttering threats in relation to his involvement with Ms. B and the custody dispute. Corporal C of the Richmond RCMP Detachment was the police investigator responsible for the criminal investigation. The circumstances which give rise to this complaint occurred on July 16, 2008, when Corporal C approached Mr. A and his legal counsel on the custody issues, Ms. D, in a courtroom after a family court hearing in the Vancouver Provincial Court. Corporal C was concerned about the contents of a letter Ms. D had written to opposing counsel in which Ms. D's client, Mr. A, had offered to drop his claims to custody and access to his daughter on the condition that Ms. B write to the RCMP "outlining the lies in her statement to them" and "take all possible steps to have the charges against Mr. [A] dropped." Corporal C advised them that the letter was an obstruction of justice. Corporal C then provided the police warning to Mr. A and Ms. D. She said that any further letters of its kind could result in criminal charges. Corporal C also informed Mr. A that he would likely not receive a change in his bail condition to have access to his daughter and that if he did, the Ministry of Children and Families would intervene to disallow the access. The discussion ended when the sheriff asked all three of them to leave the courtroom.

As a result, Mr. A¹ lodged a complaint against Corporal C for improper attitude with respect to the discussion which occurred in the courtroom concerning the letter and varying a bail condition.

Based upon a careful review of the evidence, I am satisfied that Corporal C did not threaten to arrest and charge Mr. A and Ms. D that day. However, I am concerned by her presence in a provincial family courtroom in Vancouver and her engaging in conduct that intimidated legal counsel, and which the sheriff in the courtroom found unprofessional. Under the circumstances, I find that her discussion with Mr. A and Ms. D was inappropriate and raises issues of lack of impartiality.

Overview of the Process

On July 21, 2008, Mr. A filed his complaint with the Commission for Public Complaints Against the RCMP (the Commission) alleging that Corporal C had displayed an improper attitude when she threatened to arrest and charge him and his legal counsel; and that she displayed an improper attitude when she threatened to ensure that Crown counsel oppose his application for a bail variation.

Pursuant to the RCMP Act, the complaint was investigated by the RCMP. Consistent with 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.

In this case, the RCMP's Final Report dated December 15, 2008 did not support Mr. A's allegations.

Mr. A was not satisfied with the RCMP's disposition of his complaint, and on August 28, 2009, he asked the Commission to review the matter. The Commission received the investigation documents from the RCMP on September 22, 2009.

Commission's Review of the Complaint

It is important to note that the Commission for Public Complaints Against the RCMP 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. A's complaint and correspondence from Mr. A to the RCMP and the Commission, Ms. D's letter to the Commission, dated August 5, 2008, as well as the RCMP's investigation documents, which include the public compliant investigation report, the statements of Corporal C, Mr. A, Ms. D, Constable E, F, Community Support worker and G, B.C. Sherriff, copies of the Richmond RCMP Detachment operational files relating to Mr. A, copies of the national and "E" Division Violence in Relationships policies, the "E" Division Victim Assistance/Victim Services Program policy, handwritten notes of the public complaint investigator, e-mails, and progress letters and memos relating to the public complaint investigation.

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

My review of the investigational materials reveals that there is little dispute in terms of the substance of the exchange between Corporal C and the complainant and his lawyer.

Corporal C's involvement with this case arises from the fact that she investigated the complaint of harassment which Ms. B reported to the Richmond RCMP Detachment in relation to Mr. A. After completing her investigation, Corporal C laid criminal harassment, and later uttering threats, charges against Mr. A. In fairness, a review of the Richmond RCMP Detachment operational file reveals that both Mr. A and Ms. B have each complained to the RCMP as a result of their ongoing custody dispute.

In June of 2008, Corporal C received a copy of a letter² purportedly from Ms. D to Mr. H, the family law lawyer representing Ms. B. The letter is dated June 8, 2008. In the letter, Ms. D advises Mr. H that her client, Mr. A, was willing to waive "any further rights to his daughter" providing that Ms. B would write to the RCMP "outlining the lies in her statement to them" and was willing to "take all possible steps to have the charges against Mr. [A] dropped."

Corporal C was concerned about the letter and faxed it to Crown counsel. In fact, Corporal C spoke to two different lawyers with the Crown counsel's office who "both stated that at this time they felt it would be appropriate for [her] to seek guidance from [RCMP] legal services area." Corporal C did so and said that she acted upon the legal advice provided by RCMP legal counsel with respect to the letter.

On July 16, 2008, Corporal C attended a family court proceeding involving Mr. A and his ex-spouse, Ms. B. The proceeding was at the Vancouver Provincial Courthouse. Corporal C was on duty; however, she was dressed in casual clothing with her sidearm underneath her sweatshirt.

In her statement, Corporal C explained that she attended the family court hearing in order to protect from harm F, the crisis support worker of the Violence in Relationships Unit at the Richmond RCMP Detachment. Corporal C stated:

So anytime that there was a family court matter, my partner in the...in the High Risk Domestic Violence Unit, F, attends court with the victims where we're having ongoing contact with them. But because he [Mr. A] would also be in the court room, I am in a position where I have a duty to protect F from harm.

Corporal C later explained:

B is frightened of...of him [...] so F goes to support her and I went because I can't put F at risk."

In her statement the subject member also advised that Ms. B was worried about the family court hearing so Ms. F was going to attend with her. Corporal C advised that she said to Ms. F, "[...] fine, let me know time and date and I'll go with you."

According to F, the crisis support worker, the reason Corporal C attended court was to provide "support to Ms. B and a learning opportunity for Cst. E."

The family court proceeding was held in the Vancouver Provincial Court. During the proceeding, the judge stated that Mr. A should contact the Crown about changing his bail conditions to allow access to his daughter. After the family court hearing had adjourned, Ms. B and her lawyer left the courtroom. By all accounts, it was at that point that Corporal C then approached Mr. A and Ms. D who were still behind the bar at the counsel table.

The evidence is consistent that Corporal C then identified who she was and advised Ms. D that she had left her a message. Ms. D responded by saying that she had returned her call and left her a message. Corporal C then went on to state to Ms. D and Mr. A that she wanted to speak to them about a letter where Ms. B was asked to change her testimony. Corporal C then went through what she referred to as her "song and dance" about how the "[p]olice's job is to find the truth, it's up to the judges to make a decision." Corporal C informed them that she wanted to hear everybody's story about what happened and then let the judge decide. She said, "I went through that spiel with them."

Corporal C related that she also explained to them that the letter was "obstructing justice" but because it seemed to be a misunderstanding about how the criminal justice system works, that she would not be seeking to lay charges. However, she did advise Ms. D and Mr. A that any further attempts to contact Ms. B in this manner requesting that she change her testimony with the intent to have charges dropped, would be "looked at as obstructing justice and potential charges would be laid." Corporal C said that Ms. D looked "a bit shocked" when she said that and that Ms. D "looked back and kind of lifted her head up...like she was surprised at that."

She also advised that Mr. A attempted to speak but she told him that he should not talk to her and that he should have a criminal lawyer present or at least talk to one; and that he should not incriminate himself in front of her. Corporal C stated that she clearly advised them that she was not arresting anyone.

The conversation did not end there, however. In her statement, Corporal C advised:

The second issue I addressed with them....as part of my job I attempt to where I...my...you know, [F] works with the victims, I also try to support the accused in these matters in order to prevent them from....from committing further offences. And part of that is a risk assessment. Part of a risk assessment is staying on top of these people and knowing what their behaviours are and what their triggers are. So what I explained to [A] was that he would likely not receive a change in the bail condition....

Ms. D, who was representing Mr. A in his custody dispute, advised in her letter of complaint written shortly after the incident, that Corporal C was intimidating and suggested that she intended to lay charges against them but determined that perhaps the letter had been a misunderstanding. Ms. D, however, felt that "it was still being held over my head as a threat." In her statement, Ms. D advised that Corporal C stated that she was going to arrest Ms. D and Mr. A but decided that the letter was a misunderstanding. Ms. D advised "never having been arrested or threatened with arrest, I think my heart was pounding....I found it very frightening." Ms. D also related how Corporal C had said that the Crown would never change Mr. A's bail conditions to allow him access to his child. Ms. D admits that she does not remember exactly what was said because she was shocked. She does remember that the conversation between Corporal C and Mr. A was an angry exchange. In her complaint letter, Ms. D described the exchange as loud. Ms. D also recalled that during the family court hearing Corporal C was sitting with Ms. B in the public gallery. Ms. D thought she was a friend of Ms. B's.

Mr. A's letter of complaint written the day of the incident indicates that Corporal C approached him and Ms. D and advised them that "[s]he had been considering laying charges on both me and my attorney, for a letter that was written to the opposing counsel, but that she had let it go, as being a misunderstanding." Mr. A stated that Corporal C turned before going out of the courtroom and told them "that there was no way that the Crown would remove my daughter from the No Contact Order, she would see to that." Mr. A also mentioned Corporal C's informal attire.

The public complaint investigator spoke with the sheriff, Mr. G, concerning the incident. Mr. G stated that Corporal C started the conversation which became louder as it continued between the officer and Mr. A. Mr. G stated that Ms. D stayed out of it. Mr. G says that he stood up and told them he was locking up and to take it outside. He says the conversation did not cross the line into a disturbance. But he felt that the subject member acted unprofessionally and did not need to be confronting Mr. A after court when he would be stressed about his custody case. Mr. G stated that the incident was not serious enough to warrant a report.

Constable E was also in the courtroom during the exchange but did not hear any raised voices. Ms. F was in the courtroom but unable to hear the exchange although she said that the tone of the conversation was polite.

First Allegation: Corporal C displayed an improper attitude when she threatened to arrest and charge Mr. A and his legal counsel for obstruction of justice.

Contrary to the allegation, the evidence is clear that Corporal C did not threaten to arrest Mr. A and Ms. D. Nonetheless, she did advise them that the letter in question was an obstruction of justice; but that she had determined that no charges would be laid in this instance. Corporal C also warned Mr. A and Ms. D that any further letters of this nature would be considered obstructing justice and criminal charges could be laid.

Corporal C recognized that Mr. A did not write the letter and that he sought legal advice in sending the letter, and therefore, according to Corporal C, she could not charge him. Instead, she decided to issue a warning to Ms. D and Mr. A.

Police officers have a wide discretion in terms of investigating and laying charges.³ Given that Corporal C had concerns about the content of the letter, she acted properly in seeking legal advice. However, I question Corporal C's jurisdiction with respect to this letter as a criminal matter. Ms. D's legal offices are located in Mission, British Columbia. Given that the letter was written in Mission and therefore the alleged offence would have occurred in Mission, presumably the letter should have been forwarded to the Mission RCMP Detachment for investigation and a further course of action.

Moreover, while Corporal C may have had a genuine concern with the letter, this situation illustrates some of the pitfalls of the police being drawn into custody and support disputes. Accordingly, the concern that I have with this incident arises from the manner and circumstances in which Corporal C raised the issue of the letter with Ms. D and Mr. A and the perception of bias it gives rise to.

Corporal C initiated the exchange with Ms. D and Mr. A about the letter in an open courtroom at the counsel table after a family court proceeding. In reviewing the evidence, it is difficult to understand why Corporal C, a member from the Richmond RCMP Detachment, was present in a family court hearing in Vancouver when her presence was neither requested nor required. Corporal C provided the explanation that she was providing protection to Community Support worker F. However, her explanation is self-serving and not convincing.⁴ In fact, Ms. F says that Corporal C was present in the courtroom to provide support to Ms. B and the evidence suggests that Corporal C offered to go along to the hearing.

Moreover, it is questionable whether an RCMP member working outside the jurisdiction of a courthouse would be required to provide protective policing services in that courthouse. National, "E" Division and Richmond Detachment Violence in Relationships policies are silent on that issue. The "E" Division Victim Services policy sets out the roles and responsibilities of both RCMP members and Victim Services workers and personnel. The focus of the policy is on providing support to victims in the criminal justice system, namely providing victims with information which will assist them as they navigate through the system. A few examples of the services or information offered to victims include assistance with filling out victim impact statements, advising victims about the status of the police investigation, providing the rationale with respect to charges, and providing information regarding criminal court appearances. The Victim Services policy does indicate that in the context of attending a (crime) scene, the RCMP member must always ensure the Victim Services worker's safety. However, the policy does not contemplate an RCMP member attending an out-of-jurisdiction family court proceeding. Lastly, Corporal C was sensitive to her presence in the courtroom as well. In her statement, she advised, "By no means was I gonna' step on Sherriff's toes or anyone else's and do their job, but essentially if [F]'s there to be supportive, I'm there to assist her."

Finally, in an e-mail, dated March 3, 2008, from the public complaint investigator to Corporal C, it is apparent that a commander believed that Corporal C's job did not include attending civil court, only criminal matters as related to the police. Under the circumstances, I agree. There was no pressing need for Corporal C to attend a family court proceeding outside her jurisdiction when she was neither requested nor required to attend.

Moreover, I note that Corporal C chose to sit with Ms. B, the victim, and the other people "supporting" Ms. B during the family court proceeding. Ms. D thought the subject member was Ms. B's friend. In accordance with paragraph 37(c) of the RCMP Act, all RCMP members have an obligation to perform their duties impartially and without abusing their authority. By sitting with Ms. B, Corporal C raised a potential perception of bias. Instead, she should have sat apart from either of the parties thereby demonstrating her independence and impartiality. In addition, Constable E was attending the court hearing as a learning exercise.⁵ Corporal C should have been more sensitive to the issue of perception of bias particularly where it was a learning exercise for a junior member. Accordingly, Corporal C exercised poor judgement by sitting with Ms. B during the family court proceedings.

While Corporal C's motives may have been genuine, I find that she placed herself in a position of appearing biased by attending a family court proceeding peripheral to her policing activities and where it appeared to others that she was supporting the victim. Police officers should always conduct themselves in a neutral and objective manner, without personalizing the issues. Furthermore, as a matter of public policy and civility in the courts, police officers should not be confronting legal counsel about criminal matters in a civil court.

I am satisfied that the subject member was not rude in her language or demeanour; however, she did take the parties by surprise and engaged in a loud discussion with Mr. A. Ms. D advised that she felt intimidated and believed there was an underlying threat in Corporal C's warning. Mr. A was upset and an exchange ensued. The sheriff believed Corporal C's conduct was unprofessional and I agree. Although Corporal C may not have intended to intimidate Ms. D or Mr. A, that was the effect. A low-key phone conversation with Ms. D concerning the letter would likely have been more constructive. There was no urgency to the matter, as Corporal C was not intending to lay charges. In fact, I note that Crown counsel chose not to advise Corporal C on the matter and referred her to RCMP legal counsel instead. If the letter had really been a pressing criminal issue, Crown counsel would have become involved.

Finally, the public complaint investigator commented that Corporal C is "very passionate about her duties." However, I find that her conduct has raised a perception of bias in this instance and that she exercised poor judgement in attending the family court proceeding, sitting with Ms. B and engaging in a loud discussion with Mr. A and his family lawyer about a letter where she had questionable jurisdiction. Accordingly, I recommend that Corporal C or if she is unable, a senior member of the RCMP apologize to Mr. A and Ms. D. I also recommend that Corporal C be provided with operational guidance with respect to the importance of the perception of impartiality and that the scope of her duties with respect to attending family court matters in Vancouver be reviewed with her.

Finding: Corporal C did not threaten to arrest Mr. A and Ms. D; however, under the circumstances, the subject member's conduct raised a perception of bias and she exercised poor judgment.

Second Allegation: Corporal C displayed an improper attitude towards Mr. A by threatening to ensure that Crown counsel opposed Mr. A's application to remove his daughter from a "no contact order."

Corporal C, while attending the family court proceeding, overheard the judge state that Mr. A should contact the Crown about changing his bail conditions to allow access to his child. Corporal C then stated to Mr. A that he would likely not receive a change in his bail condition to have access to his daughter and that if he did, the Ministry of Children and Families would intervene to disallow the access.

In addressing this allegation in her statement, Corporal C advised, "[F] works with the victims, I also try to support the accused in these matters in order to prevent them from....from committing further offences. And part of that is a risk assessment. Part of a risk assessment is staying on top of these people and knowing what their behaviours are and what their triggers are." It is difficult to understand why Corporal C believed that making such a comment would be helpful. In fact, it was an unsolicited, gratuitous remark that was almost taunting in nature. Her conduct did not demonstrate someone who was attempting to "support the accused...to prevent further offences." Her comment was uncalled for and could have exasperated the situation between Mr. A and Ms. B.

By needlessly raising this issue with Mr. A, Corporal C further demonstrated her lack of perspective and objectivity in this case. Clearly, the decision to vary a bail condition rests with the judge, not the subject member. Her own opinion on the outcome was immaterial. No further recommendations are warranted, as the recommendations made above will suffice as a remedial measure to ensure that Corporal C is aware of the importance of appearing and remaining impartial.

Finding: Corporal C's remark was unsolicited and gratuitous, and by making such a remark she further raised a perception of bias.

Comment

Without question the public complaint investigator, Sergeant I, conducted a thorough and detailed investigation into this matter. He followed up on issues raised by his supervisor and reported accordingly about those issues in his public complaint report. I note, however, that in questioning the subject member during her statement Sergeant I could have been perceived to have been less than objective. During key points, he chose to use leading questions which provided to the subject member reasonable explanations in the questions for her conduct. An example of this type of questioning is as follows:

I: Now in relation to the second allegation [...] was there any threat that you were gonna' make sure this happened or did you just explain the realities of the situation to him?

Another example,

I: Okay, so this whole issue that you're dealing with Mr. [A] and his lawyer is just a file you're investigating and you're just following up as...as things come in? It's not a personal matter?

It would have been preferable had Sergeant I refrained from suggesting the answers in his questions, as it tends to undermine the credibility of Corporal C's statement.

In addition, during Ms. D's statement, Sergeant I opined about the likelihood of the Crown removing one of Mr. A's bail conditions. Ms. D advised Sergeant I that she was "not going there..." stating, "I think that that's an assumption that...perhaps you shouldn't be making either." I agree with Ms. D. In the context of conducting an objective public complaint investigation into a matter which concerns that very issue, it seems somewhat imprudent for Sergeant I to have expressed his opinion on the matter when it was not at all relevant or required. To his credit, Sergeant I did respond to Ms. D's objection and concluded with the comment that in the end it was the judge's decision.

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 Ms. D contacted the Commission and chose to have her letter of complaint added as an addendum to Mr. A's complaint. Her letter of complaint was forwarded by the Commission to the RCMP on August 13, 2008.

2 The letter appears to have been dropped off at the front counter of the Richmond RCMP Detachment.

3 Without commenting further on the merits of such a letter, it is clear that the suggestion was not that Ms. B change her testimony only that she retract her lies, as Mr. A saw it.

4 A reasonable person would assume that if anyone needed protection, it would likely be the victim, Ms. B.

5 Again, it is difficult to understand why Constable E would have been asked to attend a learning exercise in a family courtroom as opposed to a criminal courtroom and outside the Richmond RCMP Detachment's jurisdiction. Nonetheless, it was a learning exercise and RCMP member conduct was important.