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

RCMP Act Paragraph 45.42(3)(a)

Vetted version for posting

June 17, 2008

Overview

On May 4, 2007, the Shawnigan Lake RCMP Detachment in British Columbia received a call about a suspected impaired driver. The vehicle stopped at a pub, and a detailed description of the driver was provided to Constables B and C, who later attended the location. The driver, subsequently identified as Mr. D, exited his vehicle and entered the pub. The complainant, Mr. A, stayed in the passenger side of the vehicle. Constable B went inside the pub to ascertain Mr. D's physical condition. He was satisfied Mr. D was intoxicated and arrested him for being drunk in a public place. Meanwhile, Constable C approached the vehicle and, after a short exchange with Mr. A, arrested him for obstructing a peace officer.

On June 13, 2007, Mr. A complained to the Commission for Public Complaints Against the RCMP (Commission) and alleged Constable B failed to provide medical attention to Mr. D when arresting him. Mr. A also complained Constable C used derogatory language, excessive force and improperly arrested and humiliated him during his arrest.

As required by 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 Commissioner's Final Report dated February 4, 2008, did not substantiate the complainant'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 3, 2008. The Commission received from the RCMP the investigation documents relating to this file on April 4, 2008.

For the reasons outlined below, I am satisfied Mr. A's arrest was improper and, accordingly, the force used for his arrest was also improper. I am also satisfied Mr. A felt humiliated when he had to walk across the parking lot to have his handcuffs removed. However, I am satisfied there is no evidence to suggest Constable C swore at the complainant or acted inappropriately in the circumstances.

Commission's Review of the Complaint

My conclusions and findings are based on the examination of the following materials: Mr. A's complaint and statement, the RCMP's Final Report, Mr. D's statement, subject members' notes, the RCMP's investigation report, the report to Crown Counsel and the subject members' continuation reports.

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 either for the complainant or for RCMP members. Rather, its role is to inquire into complaints independently and to reach conclusions after an objective examination of the information provided.

First Allegation: Constable B failed to provide medical attention to Mr. D after being told he may have had sustained a head injury.

Mr. D and Mr. A both said they scouted all day for camping locations, which led them to drive deep into forested areas on uneven gravel roads. Mr. D said the poor road conditions caused him to lose control of his vehicle on a few occasions. He said this explained the heavy damage his vehicle had sustained to the driver and passenger sides, as well as the front bumper. The subject members witnessed the extensive damage to Mr. D's vehicle when they intercepted him at the pub.

Mr. A alleged he told Constable B that Mr. D had potentially suffered a head injury during their day trek in the forest, and argued Constable B failed to provide proper medical attention to his friend. When interviewed the next day, Mr. D was asked if he had sustained any injuries while driving his vehicle, to which he replied no. Later in the interview, Mr. D was specifically asked if he had recently sustained a head injury, to which he once again replied no.

Constables B and C said they noticed no signs of possible injuries, and added neither Mr. D nor Mr. A mentioned a possible head injury during their arrests. Mr. A believed his friend was suffering from an injury, but he failed to disclose this during the arrest. Moreover, Mr. D himself refuted the complainant's allegation when he said the following day he did not sustain any type of injury. Because of Mr. D's statement, I am satisfied there is no evidence to support the complainant's allegation.

Finding: Constable B reasonably concluded Mr. D did not require medical attention.

Second Allegation: Constable C improperly arrested the complainant by not advising him of the reasons for his arrest.

Third Allegation: Constable C used foul language when talking to the complainant, and used excessive force when arresting the complainant when she forced him on the car and twisted his arm behind his back.

Fourth Allegation: Constable C humiliated the complainant and caused defamation of his character when she made him walk across the parking lot to another member's vehicle in order to get the keys to remove his handcuffs.

In order to determine whether the amount of force used to arrest Mr. A was reasonable, I must first determine whether the members had grounds for the arrest. If the members had no grounds to arrest Mr. A, then any use of force would be unreasonable and excessive. Mr. A said he was in the passenger side of Mr. D's vehicle when Constable C approached him. He said she dragged him out of the vehicle, threw him on the hood and arrested him. He said Constable C grabbed and twisted his arm, placed handcuffs tightly on his wrists and failed to provide an explanation as to why he was placed under arrest.

Mr. A was arrested by Constable  C. She told Corporal E, the public complaints investigator, she arrested Mr. A for obstructing a police officer because he failed to answer her questions. She said the complainant was uncooperative and belligerent. She also said she only used as much force as necessary to proceed with the arrest, and that it was impossible for her to have "man handled" the complainant, because he was physically taller and bigger than her.

On the other hand, Constable F and Corporal G, who later attended, both believed Mr. A was arrested for being drunk in a public place, but none of them were present when Mr. A was arrested. As for Constable B, the member who arrested Mr. D, he wrote in his continuation report that Mr. A had been arrested by Constable C for being drunk in a public place. However, when he was interviewed by Corporal E, Constable B said he was not present at the moment of the arrest, and that he believed Mr. A had been arrested for obstructing a police officer.

Given the contradictory statements between the attending members, the RCMP stated in its Final Report that Mr. A was arrested for obstructing a police officer. Given the fact Constable  C claimed she arrested the complainant for obstructing a police officer, I am satisfied she proceeded with Mr. A's arrest under that charge.

The British Columbia Supreme Court in R . v. Legault, (1998) B.C.J. No. 1309, stated that grounds for an arrest for obstructing a peace officer exist only when a person, subject to the arrest, has knowledge that his refusal to identify himself may likely trigger the charge of obstructing a peace officer. In this case, it was not clear if Constable C asked Mr. A to identify himself, nor was it clear she told him that his failure to do so would likely trigger the aforementioned offence.

Constable B wrote in his continuation report as well as in his report to Crown counsel that Mr. A identified himself; however, he also wrote the complainant was arrested for being drunk in a public place. Because Constable B was not present at the moment of the arrest, and because of the discrepancies between his report and his statement to Corporal E, I must rely on either the complainant's version of the events, or Constable C's statement to Corporal E.

I afford little weight to Mr. A's statement. He alleged his friend, Mr. D, had suffered from a head injury, when the evidence showed this was untrue. He alleged a couple of his co-workers had seen him walk in the parking lot while he was handcuffed, however he could not provide any of their names. He further alleged he had only taken a few beers, but all attending members said Mr. A smelled of alcohol and was intoxicated. Lastly, he alleged he was dragged out of the vehicle and thrown on the hood, but the evidence showed the arresting members was much smaller than him, making this allegation very improbable. Because of Mr. A's lack of credibility, I prefer Constable  C's version of the events.

Constable C stated to Corporal E she advised Mr. A of the reasons of his arrest. However, Constable C provided little evidence as to why Mr. A was arrested under that charge, other than that the complainant had refused to answer her questions. The evidence showed Constable  C knew Mr. A was not the driver of the vehicle and that Mr. A was not suspected of having committed a criminal offence.

Mr. A was arrested because he refused to answer questions. However this refusal, when there exists no other reasoning, could not in itself provide the necessary grounds to trigger an offence of obstruction. Constable C failed to explain why Mr. A was compelled to provide his identity, or why his cooperation was required in the circumstances. I therefore conclude Constable  C did not have the necessary grounds to arrest Mr. A for obstructing a police officer and, as a result, I find Mr. A's arrest was improper. As for 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, I also find Constable C's use of force against the complainant was excessive in the circumstances.

Mr. A alleged he was humiliated and his character was defamed when he had to walk across the parking lot while handcuffed. He complained that two of his co-workers saw him and said he felt embarrassed as a result. When asked by the public complaints investigator to provide the names of the alleged co-workers, however, Mr. A offered none. He also could not explain in what specific way he felt Constable C had caused his character to be defamed.

Constable C said she did not have the keys to unlock Mr. A's handcuffs, and supported the complainant's allegation that he had to walk across the parking lot in order to have the handcuffs removed by another member.

Given the fact Mr. A was handcuffed following an improper arrest, I am satisfied that he felt embarrassed by the whole incident. However, there is no evidence to support the complainant's allegation that Constable C acted inappropriately by intentionally defaming him.

Mr. A finally alleged Constable C swore at him during his arrest. There were no independent witnesses to support the complainant's allegation and Constable C denied swearing at him. None of the other members could corroborate either version of events, as none of them had witnessed Mr. A's arrest. Because of the conflicting statements and the lack of independent witnesses, I cannot make a determination either way relative to this allegation.

Pursuant to paragraph 45.42(3)(a) of the RCMP Act, I respectfully submit my Interim Report.

_____________________
Paul E. Kennedy
Chair