Chair's Interim Report – Incident Related to Neglect of Duty

RCMP Act Paragraph 45.42(3)(a)

Vetted version for posting

December 16, 2009

Synopsis

This review arose from the RCMP's disposition of a complaint filed by Mr. B, on behalf of the BC Civil Liberties Association (BCCLA). The BCCLA expressed concern that the RCMP members who dealt with Mr. A, who died in the custody of the RCMP on August 5, 2007, failed to meet appropriate professional standards in discharging their duty of care towards him.

The RCMP investigated the complaint and found that the members followed policy, and so met the appropriate professional standards.

For the reasons outlined below, I find that the subject members did not comply with RCMP policy in the following ways: at times the members did not monitor Mr. A in full compliance with RCMP policy; Mr. A was not assessed by a member between guard shift changes; and a senior member did not properly secure the scene. That being said, I make no finding that the outcome for Mr. A would have been any different had the members taken these steps.

Overview of the Process

On September 12, 2007, the BCCLA complained to the Commission for Public Complaints Against the RCMP (the Commission) regarding the conduct of the members involved with the custody of Mr. A on the night of his death. Initially, the RCMP terminated the investigation into the public complaint on the basis that the issues were being dealt with through other processes. However, pursuant to an Interim Report issued by the Commission finding that the termination was improper, the RCMP was directed to investigate the public complaint.

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 Report¹ dated August 12, 2009 found that the involved members followed RCMP policy.

The BCCLA was not satisfied with the RCMP's handling of the complaint, and on September 9, 2009, asked the Commission to review the matter. The Commission received the investigation documents from the RCMP on September 25, 2009.

Commission's Review of the Complaint

It is important to note that the Commission is an agency of the federal government, distinct and independent from the RCMP. When reviewing a complaint, the Commission does not act as an advocate for either the complainant or RCMP members. Rather, its role is to inquire into complaints independently and to reach conclusions after an objective examination of the information provided.

My findings, as indicated below, are based on a careful review of all the investigation documents. These include the BCCLA's complaint and request for review, the public complaint investigator's report, statements from the involved members, guards, paramedics, and friends of Mr. A, the dispatch records, photographs of the scene and of Mr. A, the prisoner booking form, the prisoner's log, the autopsy report, transcripts of the coroner's inquest, the RCMP's Final Report, as well as other relevant documentation.

Summary of the Incident

By all accounts, Mr. A was a likeable fellow who had a number of non-confrontational dealings with the RCMP due to alcohol-related incidents. On August 4, 2007, Sergeant C and Constable D happened upon Mr. A during a routine patrol in, British Columbia. He was lying in the grass in an area in front of the post office with a beer beside him. They poured out the beer and woke him up, advising him to go home. Sergeant C and Constable D continued on their patrols and Mr. A went on his way. Several hours later, they encountered Mr. A again in a nearby area. At that point, Mr. A appeared to be fairly intoxicated and a decision was made to lodge him in cells for public intoxication² until he sobered up. On the ride to the detachment, Mr. A was accompanied by a friend, who agreed to attend the detachment in relation to another matter.

All witness accounts confirm that Mr. A had been drinking that day. His friend who also attended the detachment stated that Mr. A was intoxicated, but that there was nothing that concerned him, and that Mr. A did not appear to be "sick or anything like that." Constable D stated that while Mr. A was intoxicated and needed some assistance walking, he did not seem any more intoxicated than she has seen him before. He answered all of the members' questions and otherwise seemed fine. He and his friend were joking back and forth in the back of the police car on the way to the detachment. When he was lodged in the cell, he took his blanket and mattress, laid down and went to sleep. Constable D stated that that was how he was when she left the detachment at the end of her shift. Sergeant C made similar observations.

A guard was called in to watch Mr. A. The guard arrived at the detachment and began her shift at approximately 7:25 p.m. She was replaced by another guard at approximately 3:30 a.m. on August 5, 2007. The replacement guard became concerned about the lack of movement shown by Mr. A, and asked Constable E, who later arrived at the detachment, to do a physical check of Mr. A. Constable E entered the cell at 4:16 a.m. and observed that Mr. A was not breathing and had no pulse. The ambulance service was immediately called. Constable E attempted to give Mr. A two breaths, but could not get an airway. Through his observations, he determined that Mr. A was dead. The paramedics arrived approximately twenty minutes after Mr. A was discovered; they began CPR and continued it to the hospital, where Mr. A was pronounced dead. At no time was a pulse regained.

The primary investigator assigned to investigate the circumstances surrounding Mr. A's death was Sergeant F. The MCU's mandate is to investigate homicides, suspicious deaths, missing persons where foul play is suspected, in-custody deaths and police involved shootings. There were no findings of fault on the part of the involved RCMP members made at the conclusion of the investigation. The RCMP determined that the guards and members followed policy with regards to their contact with and care for Mr. A.

The RCMP's investigative report was provided to the BC Coroners Service. A coroner's inquest was held in February 2008. At its conclusion, the death was classified as accidental, as a result of a respiratory arrest due to or as a consequence of acute alcohol intoxication.

Allegation: RCMP member(s) failed to meet appropriate professional standards in discharging their duty of care towards A.

a) Decision to Take Mr. A to RCMP Cells

Every officer has a responsibility to ensure that those in their custody are provided with any necessary medical care. It is not uncommon for RCMP members to deal with intoxicated persons, and to take them into custody to preserve their safety and the safety of others. Such persons are generally released within a short number of hours, when they are sober enough to care for themselves. However, in some circumstances, the level of intoxication may be so high that the person requires immediate medical attention. RCMP policy provides that any prisoner who is "obviously ill, injured or of questionable consciousness at the time of arrest SHALL NOT be placed into a cell until medically examined [...] [emphasis in original]."³

In the case of Mr. A, the question arises whether the RCMP should have sought medical attention for Mr. A prior to or instead of lodging him in cells. As indicated above, Mr. A had been lodged in cells on a number of occasions for public intoxication. The evidence of the witnesses is that while Mr. A was intoxicated, had slurred speech, and was somewhat unstable when he walked, he was communicative, coherently answered their questions, and appeared no more intoxicated than in the past. No one expressed any concern for Mr. A's well-being, and appears not to have believed Mr. A to be of questionable consciousness. All involved expected that Mr. A would sober up and be released within a short number of hours. In light of the members' observations, I find that it was reasonable for them to lodge Mr. A in cells and to not seek medical attention on the basis of his level of intoxication.

Finding: It was reasonable for the members to take Mr. A to cells and to not seek medical attention for his level of intoxication.

b) Monitoring of Mr. A

Continual Monitoring

RCMP policy requires that guards, or members acting as guards, are required to continually monitor and record a prisoner's activity in the prisoner's log.⁴ Continual monitoring means to physically watch, observe or check frequently and irregularly, but in no case in longer than fifteen-minute intervals.

Four persons were primarily responsible for monitoring Mr. A while he was lodged in cells. Both Constable D and Sergeant C were involved with arresting Mr. A and lodging him in cells. Constable D made the first entry into the prisoner's log book. However, for the thirty-five-minute period between the time Mr. A was lodged in cells and the first guard arrived, it is unclear whether any member monitored Mr. A, as there is no entry in the log book. In his statement, Sergeant C referred to a member being in the area the whole time, but there is no indication that anyone looked into the cell to observe Mr. A during this time. The first guard to look after the monitoring of Mr. A indicated that Sergeant C was the only member in the office when she arrived. While Constable D stated that she checked on Mr. A before she left the office (which was before the guard arrived), there is no indication of what time that was, i.e. whether it was shortly after Mr. A was lodged, or sometime later. In any event, Mr. A should have been checked on at least twice during that time period according to RCMP policy, and it appears that no one took responsibility for the monitoring. As the senior member on site and the officer in charge, Sergeant C should have ensured that Mr. A was being adequately monitored.

The prisoner's log book confirms that the first guard responsible for monitoring Mr. A made checks at the cell door at intervals generally between thirteen and fifteen minutes. She gave evidence that she watched for Mr. A's breathing and satisfied herself of same. None of the intervals between her checks were longer than fifteen minutes. However, I note that the checks made by the second guard prior to the discovery of Mr. A in an unconscious state at 4:16 a.m. were at sixteen- and seventeen-minute intervals, i.e. not within the parameters set out by RCMP policy. The RCMP should remind all guards working at the Detachment of the importance of complying with the time requirements set out in the policy.

Assessment by Senior Member

RCMP policy also provides that "[a]t the commencement and conclusion of a member's or guard's shift, the senior member on duty, accompanied by the guard, will assess each prisoner in every cell and record same."⁵

Sergeant C was involved in booking Mr. A into cells and was the only member present when the first guard arrived. He was in and out of the detachment until approximately 10:00 p.m. that evening. It appears that Sergeant C did not check on Mr. A before leaving the detachment. During the change of the guards, there was apparently no member present at the detachment and none called in to assess Mr. A. As such, an assessment by a member was not performed and, consequently, RCMP policy was not followed.

While I understand the difficulties faced by smaller detachments, the careful monitoring and assessment of prisoners is an important part of the duty of care owed to those in the custody of the RCMP. Guards at small detachments should be reminded of the need to call in a member to assess the prisoner at shift changes to ensure compliance with RCMP policy.

Reasonableness of Assessments

Members and guards are responsible for assessing the responsiveness of prisoners. RCMP policy states:

Do not attempt to determine the degree of responsiveness of a person who appears to be less than fully conscious. Ensure the guard understands that, if he/she cannot satisfy himself/herself as to the responsiveness of a prisoner, he/she should ask a member to assist in assessing the prisoner. Never assume the prisoner is "sleeping it off."⁶

The first guard on duty stated that when she arrived, Mr. A was sleeping on his side, facing the door. All of her observations were made by looking through the window in the cell door. The prisoner's log confirms her observations. Mr. A changed sleeping positions several times over the hours that followed; however, most of the time he slept on his side facing the door. Mr. A was always very quiet. At the coroner's inquest, she gave evidence that when she checked on Mr. A, she watched for the movement of his body to confirm his breathing. She noted that Mr. A was a shallow breather, so this was sometimes hard to do; however, she also noted that that is not unusual for him or in comparison to other prisoners.

After Sergeant C left the detachment that evening, Constable E and Constable G were the only officers on duty. They returned to the detachment for a period of time sometime between 2 and 2:30 a.m. The guard indicated that she mentioned to Constable E at that time that Mr. A was very still and that she "had to stand there to watch if he was breathing." At the coroner's inquest, Constable E only recalled that the guard made a general comment about how it is sometimes difficult to see prisoners breathing. He told her that he sometimes has the same problem. He did not recall any specific mention of Mr. A and did not check on him at that time. In its request for review, the BCCLA takes issue with the fact that the discrepancy between these statements was not dealt with in the RCMP's Final Report. However, I find that the discrepancy is most likely due to an honest difference in recollection of a quick and casual conversation. The guard clearly stated in her sworn evidence at the coroner's inquest that it was simply a statement and not a request that Constable E check on Mr. A or a show of concern that Mr. A needed to be checked on. She also stated that she believed him to be breathing at the time. I find that neither account of the conversation indicates any inappropriate action or inaction on the part of Constable E.

The second guard on duty stated that Mr. A was a model prisoner, that he was never aggressive or antagonistic in any sense. On previous occasions he generally went to sleep, woke up, and said thank you on his way out. While he was guarding Mr. A that night, he did not see any movement and could not see him breathing. He indicated that he "felt" that something was wrong, but he was not alarmed because it was normal for Mr. A to be asleep for hours without any movement. It was for that reason that he asked Constable E to do a physical check of Mr. A.

The BCCLA notes in its request for review that one of the paramedics stated that he observed vomit on Mr. A's face; however, none was noted in the "scene examination" section of the RCMP's Final Report. The BCCLA alleges that "[w]hether or not Mr. [A] vomited, and whether the vomit was observed during prisoner checks are relevant in determining if the members' professional duties were fulfilled." Neither the guards nor the members noted vomit on Mr. A's face. One of the paramedics observed the vomit, another did not. There is none apparent in the scene photographs and the photographs of Mr. A taken prior to the arrival of the paramedics. It appears that any vomit that may have been present on Mr. A's face was minimal in amount and not necessarily obvious.

Despite the monitoring, there was no indication that anyone believed that Mr. A was anything less than conscious. As guards are not permitted to open or enter a cell unless accompanied by a regular member for safety and security reasons, I accept on a balance of probabilities that the second guard had a member enter the cell upon developing a concern for Mr. A. While at all points in time the guards believed Mr. A was sleeping, there is no evidence that prior to the discovery the guards could not satisfy themselves as to his responsiveness and chose to assume that he was "sleeping it off." I find that the assessments of Mr. A made by all involved, based on the immediate circumstances as well as his history, were reasonable.

Absence of Camera/Video Monitoring

Sergeant C stated that he mistakenly placed Mr. A in the cell that did not have a functional camera/video monitoring; he believed that he had placed him in the cell with the working camera. There was evidence that Sergeant C had made efforts to have the defective camera replaced, and it later was. I find that the placement of Mr. A in the cell without the camera was an unfortunate but innocent mistake.

Recommendation: That all the members and guards at the RCMP Detachment be provided with operational guidance with respect to the proper "continual monitoring" and assessment of prisoners and the applicable RCMP policy.

c) Provision of Medical Care

In its request for review, the BCCLA alleges that:

The incredibly minimal CPR performed on Mr. A by RCMP members implies that either they were incorrectly trained, or they did not follow their training. The findings of the Coroner's Inquest indicate that only two resuscitation breaths were given by RCMP members. No further resuscitation attempts were made in the 20 minute period before paramedics arrived. When paramedics arrived, they immediately began CPR, and resuscitation attempts were continued during transportation, and after arrival at the hospital. This discrepancy between the resuscitation attempts of RCMP members and paramedics needs to be addressed.

One of the paramedics who attended, H, gave evidence that immediately upon attending the detachment, he inserted an airway into Mr. A and began CPR, which was continued all the way to the hospital. They also attached an external defibrillator, which determines whether or not a shock may be used to get a viable pulse; however, at no time did it indicate that a shock could or should be used and so none was. There were no pulse or respirations during that time. At the coroner's inquest, Mr. H gave the following evidence:

Q All right. We heard from the last witness, Cst. E, that there was some period of time where no CPR was being done before you arrived, and your Crew Report noted that, that there was no CPR in progress when you got there.

A Mm-hm.

Q Why did you start CPR?

A It's our — it's our protocol when we do not know how long a person has been in arrest without proper CPR, when we don't know that, unless there are obvious what we call contraindications that we not do CPR, then we do it.

Q Okay. What kind of contraindications are you talking about?

A Oh, a do not resuscitate order in effect.

Q Right.

A We can confirm a patient in rigor, in rigor mortis.

Q Right. Are you trained to recognize that?

A It's the body is stiff as a board, to put it bluntly.

[...]

Q So, there are some pretty obvious –

A Yeah.

Q — situations? But in any of the grey areas where you're not sure then your protocol is to do it?

A Go do it, oh, for sure, yes.

[...]

Q [Keith Jamieson, the ambulance driver and a retired paramedic] gave a statement to the police where he said that the skin felt very cold to him and there appeared to be a bit of lividity on Mr. A's arms. Is that something you noticed as well?

A I didn't. I was more involved in operating AED and doing the respirations and some — it could well have been, so. You know, sometimes you don't — you don't always notice these things in a stressful situation.

[...]

Q At any time while you were dealing with Mr. A did you ever see any signs of life?

A No.

Constable E stated that when he approached Mr. A, he verbally tried to stimulate him, and then attempted a pain stimulus, but there was no response. He felt his skin, but it was cold. He checked for breaths and a pulse, but there were none. He attempted to provide Mr. A with two breaths, but did not start CPR. At the time, his training taught him that the first priority was to establish the airway; however, he was not able to get one. Constable E also believed that due to the colour and coldness of his skin, and the stiffness in his jaw and arm, Mr. A was deceased.

Sergeant C gave evidence at the coroner's inquest that when he had arrived at the detachment, he was told by Constable E that Mr. A was cold and that he was stiff. Sergeant C also believed that Mr. A was already deceased at that point.

Given the evidence of the paramedics and the members, I find that it was reasonable for Constable E to conclude that Mr. A was deceased and that CPR was not a viable option at that stage.

Finding: The decision of Constable E to not provide CPR based on his assessment that Mr. A was already deceased was reasonable in the circumstances.

d) Securing the Scene

RCMP policy provides that "[i]f a prisoner or person being arrested or in RCMP custody/care, is seriously injured or dies, an independent investigation will be conducted immediately"⁷ and that the supervisor is responsible for securing the scene. However, after Mr. A was taken away in the ambulance, the guard on duty entered the cell, removed the blanket and the mattress, and hosed down the cell to clean the urine that was present on the floor and the bottom of the mattress. The guards gave evidence that this was their usual procedure when a prisoner was released from a cell. At the coroner's inquest, some members indicated that they did not think that the guards were responsible for cleaning the cells. RCMP policy provides that guards are responsible for checking cells, bunks, mattresses and blankets when a prisoner is released. They are also responsible for supervising the folding of blankets and the cleaning of the cells.⁸

Upon the discovery of Mr. A's condition, Constable E called Sergeant C, who was the officer in charge, to the detachment. In his statement, Sergeant C conceded his error in not ensuring that the scene was immediately secured. However, given that Sergeant C acknowledges his error, I do not find it necessary to make any recommendation with respect to this finding.

Finding: As the senior member present at the detachment, Sergeant C failed to ensure that the scene of Mr. A's death was secured; however, I am satisfied that Sergeant C has appropriately acknowledged his error.

Comment on the Quality of the RCMP'S Final Report

In its request for review, the BCCLA complained about the quality of the public complaint investigation and the quality of the RCMP's Final Report. Specifically, it complained that the criminal investigation was not a substitute for a professional conduct investigation and that the report lacks any analysis of professional conduct.

In terms of the quality of the investigation, I find that the material provided by the RCMP contained sufficient information to determine the merit of the public complaint. As such, I did not direct that the RCMP conduct a further investigation, as requested by the BCCLA.

The RCMP Act requires that reports to complainants set out the results of the investigation.⁹ The "results" must be taken to mean more than a recitation of the accepted facts. In terms of the findings of the investigation, drafters of the Final Report are directed by an RCMP guidebook to "[g]ive clear rationale and indicate the finding of supported or unsupported or undetermined, or that the investigation was terminated" and "where appropriate, summarize the results of the statements as they relate to the specific allegation."¹⁰ The Final Report in this instance provides nearly ten pages of witness summaries and other facts. It is immediately followed by an additional three pages quoting whole sections from an RCMP policy dealing with guarding prisoners. At the end is one short paragraph stating:

Based upon the interviews carried out during the criminal investigation, Tofino Detachment employees followed policy. Additionally, immediate action was carried out to rectify the CCVE issue however, the camera was not fixed immediately. During the Coroner's Inquest, there was no wrong doing on the part of the RCMP in caring for Mr. A. The jury did however, make some recommendations in an effort to minimize future similar incidents.

When submitting a draft Final Report, the public complaints investigator inserted the following before the above-noted paragraph "FINDINGS: INSERT FINDINGS AND RATIONALE" and indicated that he had left an area for the signatory of the report to outline their findings. Apparently, a decision was made not to complete that section.

Based on the above, I agree with the BCCLA's allegation that the Final Report lacked any meaningful analysis, and, as such, any rationale. There was no connection drawn between the lengthy summary of facts, lengthy quotations from RCMP policy, and a final conclusion that RCMP employees followed policy. The Final Report also contains what appears to be an inappropriate reliance on the results of the coroner's inquest, as neither the jury nor the coroner is empowered to make findings of fault against the RCMP.

Recommendation: That the Commissioner direct that all persons tasked with approving the final disposition letters for public complaints at the RCMP Detachment review this report and consult the RCMP Act and the RCMP's National Internal Investigation Guidebook to obtain guidance on how to write sufficient responses to public complaints.

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 I note that the BCCLA submitted an amended complaint to include an allegation about the moving of the body to take photographs, which was dealt with in a separate Final Report and is not the subject of this review.

2 Pursuant to the BC Liquor Control and Licensing Act.

3 RCMP Operation Manual, Chapter III.3, Section F.1.

4 See RCMP Operation Manual, Chapter III.3, Section H.2 and RCMP Operation Manual Part 19.3, version 2007-05-03, paragraphs 5.1 and 5.2.

5 RCMP Operation Manual Part 19.3, version 2007-05-03, paragraphs 5.5 and 1.11.

6 RCMP Operation Manual Part 19.3, version 2007-05-03, paragraph 2.3.

7 RCMP Operation Manual Part 19.5, paragraphs 1.1 and 1.2.

8 RCMP Operation Manual, Chapter III.3, Section H.11.

9 Ss. 45.4(b).

10 RCMP's National Internal Investigation Guidebook, p. 35.