Chair's Interim Report – Incident Related to Improper Search of Premises, Unlawful Detention, Mishandling of Property and Irregularity in Procedure

RCMP Act Paragraph 45.42(3)(a)

Vetted version for posting

December 16, 2009

Overview

On April 15, 2007, the RCMP Detachment received a "be on the lookout for" request for the vehicle of B. Her father reported that she was distraught, suicidal, and that he feared she may drive off a cliff with her two children. Corporal C and Constables D, E, and F attended Ms. B's residence. In addition to questioning Ms. B and her husband, A, the members searched the residence to ensure the children were safe. The members then questioned Mr. A about any firearms he owned and ultimately seized a firearm that was loaded and improperly secured. Ms. B was taken to the hospital for a mental health assessment, and was met by Sergeant G. Ms. B was deemed not to present a risk to herself or others, and was released.

On November 5, 2007, Mr. A and Ms. B complained to the Commission for Public Complaints Against the RCMP (the Commission) about the conduct of Corporal C, Constables D, E and F, and Sergeant G. In their complaint, they essentially allege that the members searched their home without lawful authority, unlawfully detained Ms. B and forced her to go for a mental health assessment, unlawfully seized Mr. A's firearm, and violated their rights under the Canadian Charter of Rights and Freedoms.

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. In this case, the RCMP provided the complainant with a Final Report dated November 22, 2008, which did not support the allegations.

Mr. A and Ms. B were not satisfied with the RCMP's handling of the complaint, and on December 9, 2008, they asked the Commission to review the matter. The Commission received the investigation documents from the RCMP on February 6, 2009 and March 18, 2009.

For the reasons outlined below, I have concluded that the RCMP improperly: 1) apprehended Ms. B under the Mental Health Act; 2) detained Mr. A; 3) required Mr. A to show them his firearm; and 4) seized his firearm. With respect to the remaining allegations, I am satisfied with the RCMP's disposition thereof.

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 all the investigation documents. These include the letter of complaint and accompanying documentation, the RCMP's public complaint investigation file, the statements of Mr. A and Ms. B, the statements and notes of the involved members, the statements of the hospital personnel who examined Ms. B, as well as other relevant documentation.

Summary of the Facts

a) Statements of A and B

On the morning of April 15, 2007, Ms. B met with her father, H, to obtain some money related to work to be completed on a home (home 1) which her father was helping her with. They argued about the house and the monetary arrangements. She was upset and "really physically sick." She stated that she was at a breaking point and left some messages on his phone. She recalled telling him that he should kill himself, but denied threatening to commit suicide. She was very distraught, and admits to screaming and swearing at her father in the voicemails. Her children were with her and were also upset. She later headed to her temporary home (home 2) – a mobile home.

Mr. A and Ms. B arrived home within a short time of each other. They had been discussing their mornings when Ms. B passed by the front door and saw a face in it. The person at the door attempted to open it onto her. She attempted to close the door and lock it. They looked through the window and could only see the man's head. They then saw a police vehicle down the road and realized that it was the RCMP. At that point, Mr. A and Ms. B went out onto the porch and spoke with the officer later identified as Corporal C.

Corporal C told them that he was there to investigate a suicide call. They discussed the situation and Ms. B believed that Corporal C concluded that she was not in a suicidal state and that perhaps the report was false. At that time, more officers arrived. The officers wanted to search the home for their children. One of their daughters was at home and came out and spoke to them. Their other daughter was at her grandmother's, but they allowed the officers to search the house for her.

Mr. A states that once the officers had searched the home for their other daughter, the officers asked to go back inside the trailer and look around again, to make sure things were okay. Mr. A believed that the members were on a fishing expedition, which, he added, had been a problem for years. One of the members said that they knew who he was-"the guy in the news." Mr. A believes the members had preconceptions about him due to his past involvement as a political and medical marijuana activist and previous disputes with the RCMP in the area. They did not read him his rights or say what they were investigating. They performed another search. When he showed that he was a little upset, they said things like "you better shut up" and "get back in the house or we will put you in jail." They also said that they were going to take Ms. B, but he did not believe that they were worried about her.

Mr. A stated that during the second search-which he believes was for marijuana-he followed them throughout. When they returned to the front of the home, the members spotted one of the abstract works he did in school, which had glued on shell casings. The members started freaking out and asking about firearms. They demanded to see any firearms in the house. He felt like he was forced to tell them about his firearm and show them where it was. The officer grabbed the case and walked back into the living room with it. They took it into another room and said that it was all wrong, that they were going to seize it. Mr. A states that he was told to go outside. He started taking pictures when they were out in the yard. The members huddled for a minute and then said that they had to take Ms. B to the hospital. At one point, he recalls asking if he could call his lawyer, but he was told no and to be quiet.

In his complaint and subsequent correspondence, Mr. A states that after viewing their licences to possess marijuana, the officers changed the focus from the alleged suicide threat to a marijuana grow op investigation and began searching the house without a warrant for marijuana plants. After they failed to find any plants, they changed the focus to firearms. Once the officers seized his gun, he told them that he planned on filing a complaint. In retaliation, the officers changed their focus back to the alleged suicide threat and unlawfully took Ms. B into custody, forced her into a patrol car, and took her to the hospital for an assessment.

Ms. B stated that after the officers seized the firearm, she thought it was over. However, the members then decided that she was going to the hospital. She did not think there was a need, but she did not feel that she had a choice but to go; they did not ask her. Corporal C took her to the hospital. Ms. B stated that the triage area at the hospital was out in the open, where everything was within earshot. She was met by Sergeant G, who said to her, "So you're the wife of that guy who grows pot, A," speaking as if her husband was some kind of criminal. She spoke with the doctor for a few minutes and he wanted to give her something, but she said that she did not want any drugs. She was then released from the hospital. She estimated that she was there for approximately twenty minutes.

c) Statements of Corporal C and Constables D, E and F

The statements of Corporal C and Constables D, E and F were consistent (but not identical) where they observed the same events. For the sake of brevity, I will summarize their statements together.

On April 15, 2007, the RCMP members received a "be on the lookout for" request for the vehicle of B. Her father, H, reported that he believed Ms. B was going to drive off a cliff and that he could hear the two children screaming in the background during a call from her. While other members conducted highway patrols, Corporal C attended Ms. B's residence (home 1), which was apparently under construction. Corporal C found the residence unsecured, went inside and cleared the building. After further patrolling, he located Ms. B's vehicle at her mobile home (home 2).

Before approaching the home, Corporal C was advised by dispatch that there was no mention of firearms by the initial complainant. Corporal C approached the front door and noticed a female running away, so he opened the door. The female tried to close the door, but Corporal C blocked it open. The female was upset and advised that he could not just walk through the door. Corporal C said that he had been looking for her. The female, now identified as Ms. B, said that she was fine. Ms. B's husband, A, came from the bedroom and told his wife to calm down. Corporal C explained the nature of the report that the RCMP received.

Constables  E, F and D arrived on scene. Ms. B was crying and appeared to be very upset. Mr. A approached Constable E, handed him a medicinal marijuana use licence, and stated, "Just so you know." Corporal C asked Mr. A if they could check the interior of the trailer to ensure there was no one else inside, since there was a report of two children in the company of Ms. B and only one was present. Mr. A agreed and stated, "There's no grow op or anything." Constables F and D entered the home with Mr. A.

A cursory inspection revealed that the missing child was indeed not in there. Constable D engaged Mr. A in conversation about his spouse's state of mind. Mr. A indicated that she was very upset and had been dealing with some very rough times in the past and that the two of them had been medicating with marijuana in the bedroom to calm down. When asked whether his wife had talked of suicide before, Mr. A advised Constable D that she had once before. (I note that this information is contained in Constable D's notes, but not in his statement.)

When asked if he had any firearms, Mr. A said that he had one locked up in the closet of the bedroom. Constable D told him that they "would need to confirm this." Mr. A went into the bedroom, reached between two pillows on the bed, and produced a black plastic case. Constable  F stated he and Constable D said that they "would need to examine the gun", and that he was standing four or five feet away at that time. Constable F moved past Mr. A and removed the case, opened it and found a loaded firearm that did not have a trigger lock on it. Constable F unloaded the firearm and seized it. Constable F noted that he seized the firearm for unsafe storage, as well as his concern about the access that Ms. B had to it, the fact that she was reported suicidal, and Mr. A's indication that they had recently been in the room where the firearm was located, medicating with marijuana.

During the search of the mobile home, Corporal C remained outside speaking with Ms. B. She explained that she and her father had been arguing that day. Corporal C asked her why her father would say that she was suicidal. Ms. B stated that her father was not mentally well. In his statement, Corporal C indicated that Ms. B appeared to be mentally sound, but noted that he was not qualified to make such an assessment.

Constable  E also remained outside during the search, speaking with Ms. B's daughter. She told him that her mother was very upset over a disagreement with Ms. B's father. She stated that her mother did not threaten to hurt herself that day.

Ms. B, Constable E and Corporal C joined the others in the residence after the firearm was seized. Mr. A stated that Constable F could not take his gun because it is registered. He then began to rant and rave about how the police were screwing him over and that he was going to sue the police. Mr. A grabbed his camera and started taking pictures of the members. Ms. B tried to calm Mr. A down.

Corporal C asked Ms. B if she could attend the hospital to see a doctor and she agreed to go. Corporal C transported Ms. B to the hospital, where she was seen by the ER physician who deemed her to be safe to herself and others.

d) Statement of H

Mr. H met with his daughter, B, on April 15, 2007, and became concerned for his grandchildren, as they were crying in the back seat of the vehicle. Ms. B told him that they were being punished. He later received a number of calls from his daughter; one call in particular prompted him to call 911. He heard what he described as terrorized screams, along with his daughter speaking in a very irrational way. He thought that she might run the car off the road. Mr. H played a number of voicemail recordings for the investigator. The voicemails appear to confirm much of Mr. H's statement. Ms. B can be heard yelling and swearing, and in one message, she states, "I don't want to live, I'm gonna kill myself."

First Allegation: Corporal C improperly searched the complainants' home 2 without a warrant.

Ms. B and Mr. A complain that Corporal C entered and searched home 1, which was under construction. In a 911 call, Mr. H reported that he believed his daughter was en route to her home 2, an old mobile (although he also mentioned that they were in the process of building a house). Corporal C stated that he was given the home 1 address and was in search of Ms. B there. There is no dispute that Corporal C found the home unsecured, entered in search of Ms. B, secured the home and left. The RCMP's Final Report takes the position that the search was justified on the basis of exigent circumstances due to concerns for Ms. B's safety.

Analysis

It was established in R v. Godoy,¹ that the public interest in maintaining an effective emergency response system is obvious and significant enough to merit some intrusion on a resident's privacy interest. Such an intrusion must be limited to the protection of life and safety, and the police do not have further permission to search premises or otherwise intrude on a resident's privacy or property. The interference with liberty must be necessary for carrying out the police duty and it must be reasonable. 

The police have a general common law duty to protect life. Ms. B was reportedly driving in her vehicle with her two children and was suicidal. According to the police computer, her vehicle was registered to the home 1 address. To ensure the preservation of Ms. B's life and that of her children, Corporal C had a duty to satisfy himself that they were not present at the residence (home 1). When he knocked on the door, he did not receive an answer; however, one would not necessarily expect someone who is suicidal to answer a knock at the door. At that point, it was both reasonable and necessary for Corporal C to enter and search the residence in order to discharge his duty in investigating the 911 call.

Second Allegation: Corporal C unlawfully attempted to force his way into the residence (home 2) occupied by Ms. B and Mr. A.

While the statements of Mr. A and Ms. B are somewhat inconsistent in some details of the incident, they both indicate that Ms. B was walking by the front door of home 2 when she saw a face in the window and the door being opened. She pushed the door closed in fear of who was trying to come in. When Ms. B and Mr. A realized that it was an RCMP officer outside their door, they stepped out onto the porch to speak with him. Corporal C stated that he approached the front door and it appeared that Ms. B was running away, so he opened the door. Ms. B tried to close the door, but Corporal C blocked it open with his foot.

Analysis

As noted above, the police are authorized to intrude on a resident's privacy interest only to the extent necessary when responding to a 911 call. Corporal C was responding to a report that Ms. B was suicidal. It appeared that Ms. B was running away from the door at the sight of him. In my view, it was reasonable for Corporal C to open the door and to block Ms. B's attempt to close it until he determined that there was no risk to her personal safety or to anyone else's.

I do note that Ms. B stated that her reaction was due to fear stemming from a previous home invasion and that when she looked through the window, she could only see Corporal C's head and could not identify him as a police officer, as he was not wearing his hat. I recognize that Corporal C appears to have thought that Ms. B was reacting to the sight of an officer at her door; however, it would have been preferable for him to announce himself as an RCMP officer before opening the door.

Third Allegation: B was unlawfully detained, not read her Charter rights, and was forced to go to the hospital for an unnecessary mental assessment.

Ms. B stated that after the members searched the house, she was approached and detained to be taken to the hospital. She felt that she did not have a choice but to go. She felt that Corporal C did not feel she was a risk but was over-ranked by a superior and so taken to the hospital. Mr. A stated that Ms. B approached him, crying, saying that the members wanted to take her to the hospital and that he could not come, as they were going to put him in jail and that she had to do as they said. In his letter of complaint, Ms. B and Mr. A state that Ms. B was forced into the patrol car and forced to speak with hospital staff. Both clarified in their statements to the investigator that Ms. B was escorted to, not forced into, the patrol car and that she simply felt that she had no choice but to go and speak to the hospital staff.

Corporal C stated, "It appeared that B was mentally sound, however I am not qualified to make such an assessment." He asked her if she could attend the hospital to be checked by a doctor. He told her that if the doctor was satisfied that she was not a threat to herself or to anyone else, he would drive her home. Ms. B agreed to go. Sergeant G, who met Corporal C and Ms. B at the hospital, stated that Ms. B was clearly not happy with the police being involved and taking her to the hospital against her wishes. The RCMP takes the position that Corporal C was attempting to ensure Ms. B's well-being under the Mental Health Act and that he was apprehending her, which was not a detainment, and that there was no requirement to read her Charter rights.

Analysis

Subsection 28(1) of the Mental Health Act of British Columbia provides:

A police officer or constable may apprehend and immediately take a person to a physician for examination if satisfied from personal observations, or information received, that the person

• (a) is acting in a manner likely to endanger that person's own safety or the safety of others, and
  
• (b) is apparently a person with a mental disorder.

Corporal C's own statement reveals that he did not believe that Ms. B had a mental disorder. There was also no evidence put forward that he believed she was likely to endanger herself or others, and it would be inappropriate for the Commission to make assumptions about what a member believed; it is up to the member to articulate his reasons when responding to a complaint. In my view, Corporal C did not have grounds under the Mental Health Act to apprehend Ms. B and take her to the hospital for an examination. In addition, while the members' statements indicate that Ms. B "agreed" to go to the hospital, I find it likely that Ms. B believed that she had no choice but to go and that any of her actions in that regard were not truly voluntary. In any event, it appeared to Sergeant G that Ms. B was taken to the hospital against her wishes.

While it is the duty of members responding to 911 calls of a suicide threat to ensure the well-being of the subject, it is also important for those members to understand the limits of their authority. It is apparent that neither Corporal C nor the author of the RCMP's Final Report fully turned their minds to the limits of the Mental Health Act of British Columbia.

Fourth Allegation: Mr. A was unlawfully detained and not read his rights prior to the warrantless search of the home.

Fifth Allegation: Constables E, D and F conducted a warrantless search of the home for firearms and unlawfully seized a firearm.

Sixth Allegation: Constables E, D and F coerced Mr. A into taking them to his bedroom to retrieve his firearm.

As there are separate allegations relating to the alleged search for marijuana and the search and seizure of the firearm, I will deal first with the initial search of the home. There is no dispute that the members searched the home for the second child. The second child had reportedly been with Ms. B, and Mr. H had expressed a concern that Ms. B might commit suicide by driving off a cliff with two of her children in the vehicle; consequently, there was a valid concern for the safety of those children. In my view, it was entirely reasonable for the members to search the home to ensure the child's safety, and no warrant was required.

The subsequent search resulted in the seizure of a firearm. While the Criminal Code permits an officer to search for and seize a weapon without a warrant in certain circumstances where it is not desirable for a person to possess the weapon because of safety concerns,² those circumstances did not exist here, as it was determined that Ms. B would be removed from the home and taken to the hospital. There was neither a reason for the members to enquire about firearms in the home nor for the members to require that Mr. A show them his firearm.

While police officers have the authority to question a person in the absence of an arrest or detention,³ they do not have a general power of detention for investigative purposes. Police officers may only detain an individual for investigative purposes if there are "reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary."⁴ A psychological detention occurs where the police issue a direction or demand, the individual complies with the direction or demand, resulting in a deprivation of liberty or other serious legal consequences, and the individual reasonably believes that he or she has no choice but to comply.⁵

In the current case, after searching for the second child and questioning Mr. A about Ms. B's state of mind, the officers asked whether there were any firearms in the home. Mr. A told them that he had a firearm locked up inside his bedroom closet. The members did not ask Mr. A to show them where the firearm was; Constable D said that they "would need to confirm this." The members did not ask Mr. A if they could view the gun case; Constable F stated that he and Constable D said that they "would need to examine the gun." The members were directing Mr. A to provide incriminating information. Mr. A indicated that he felt forced to answer the questions that were put to him and to comply with the officers' directions. The evidence strongly suggests that the officers were engaged in an investigation and assumed control over Mr. A. However, prior to viewing the gun case, the officers did not have reason to suspect that Mr. A was connected to any crime. In my view, the evidence supports the allegation that Mr. A was detained without reasonable grounds and consequently, that such detention was improper.

As the firearm was seized pursuant to an improper detainment, it follows that the search and seizure of the firearm was improper in the circumstances.

Seventh Allegation: Constables E, D and F conducted a warrantless search of the home for marijuana.

Mr. A stated that after searching the home for his daughter, and after viewing his licence to possess marijuana (which he showed to them in case they smelled it in their rooms), the officers changed the focus of the investigation from the alleged suicide threat to a marijuana grow op investigation and began searching the house without a warrant for marijuana plants.

Analysis

There is no evidence to support the allegation that the members searched Mr. A's home for marijuana. In fact, the evidence shows that Mr. A established his legal right to possess marijuana to the members prior to them entering the home and that he did so of his own initiative. There is no evidence that the officers had any concerns about the possession or use of marijuana by the complainants at the home. As such, I find that the allegation is not supported by the evidence.

Eighth Allegation: Mr. A was unlawfully detained and not read his rights prior to a second warrantless search of the home.

Mr. A stated that after the search for his daughter and prior to searching for and seizing his firearms, the officers insisted that they search the home again to ensure that everything was okay. He felt it was a fishing expedition. He kept an eye on what they were doing and they did not like that.

Analysis

Ms. B makes no mention in her statement of a second search, other than for the firearm. The members make no mention of an additional search. There is no evidence of any search other than for the complainants' daughter and for the firearm. As such, I find that the allegation is not supported by the evidence.

Ninth Allegation: Sergeant G made an inflammatory statement that was embarrassing, insulting and demeaning, and unrelated to Ms. B's hospital visit in front of the hospital staff and patients.

Ms. B stated that Sergeant G met her at the hospital and said to her, "So, you're the wife of that guy that grows pot, [A]." She told him, "Do you mean my husband, [A], who is legally licensed to produce cannabis for medical purposes?" Ms. B stated that it was in the middle of a triage room with other patients around.

Sergeant  G stated that he met Corporal C at the hospital and spoke with Ms. B to determine what had transpired. Ms. B was not happy to be in police custody and was being adversarial and clearly minimizing the incident. She initiated a conversation about Mr. A being investigated for the unsafe storage of a firearm and mentioned that Mr. A had a permit to grow medicinal marijuana. The conversation took place in the examining room of the hospital. There may have been a nurse nearby at times during the conversation, but there were no patients nearby. Sergeant G denies demeaning or insulting Ms. B. Corporal C stated that he was not involved in the conversation and does not know what was said between Sergeant G and Ms. B.

During the investigation of the public complaint, statements were taken from a doctor and nurse who treated Ms. B at the hospital. The nurse could not recall anything about Ms. B's visit. The doctor recalled Ms. B, but did not recall her demeanour when she arrived at the hospital, nor could he remember conversations between Ms. B and the members. Ms. B was placed in a closed room but he does not recall whether or not the door to the room was closed. He diagnosed her with anxiety.

Analysis

There is no independent evidence to support Ms. B's allegation of inappropriate statements made by Sergeant G. The nurse and doctor apparently were not able to hear or at least did not recall any such statements. While Ms. B stated that Corporal C was present when the comment was made, Corporal C indicates that he did not witness the conversation. In my view, there is insufficient evidence to support the allegation that Sergeant G made inappropriate comments to Ms. B in front of hospital staff and other patients.

Tenth Allegation: The members' conduct was oppressive and in violation of section 7 of the Charter.

I have reviewed the reasonableness and appropriateness of the members' conduct as set out above. As it appears that Mr. A and Ms. B have filed a Notice of Constitutional Challenge with the Supreme Court of British Columbia based on the alleged violations of their Charter rights, I will make no further comments or findings in that regard.

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 [1999] 1 S.C.R. 311.

2 See ss. 117.04(2).

3 R. v. Grafe (1987), 36 C.C.C. (3d) 267 (Ont. C.A.).

4 R. v. Mann, [2004] 3 S.C.R. 59, at para. 45.

5 R. v. Grant, [2006] 209 C.C.C. (3d) 250 (Ont. C.A.), at para. 28.