Chair's Interim Report – Incident Related To Excessive Use of Force and Improper Search of Premises

RCMP Act Paragraph 45.42(3)(a)

Vetted version for posting

August 17, 2009

Synopsis

On January 1, 2009, Constables B, C, D and Sergeant E of the Coquitlam RCMP Detachment responded to a call concerning an erratic driver. When the RCMP located the car, Mr. A was driving with his hazard lights on, in the left lane of the Lougheed Highway. They intercepted Mr. A, and upon walking up to his car, they smelled a strong odour of liquor and made other observations which led the members to suspect that Mr. A was under the influence of alcohol. As members were speaking with Mr. A, they saw a shotgun sitting in plain view, on the back seat of the vehicle. The shotgun was loaded. The members arrested Mr. A for driving under the influence of alcohol and for unlawfully transporting a firearm in a careless manner or without reasonable precautions.

Mr. A was brought to the Coquitlam Detachment for a breath test, but he allegedly refused to submit to one. He was charged with a refusal to submit to a breath sample. Mr. A became belligerent, aggressive and tried to kick a member, so the members restrained Mr. A in cells, in a restraint chair, with a spit mask over his head. He remained in the restraint chair and mask for over five hours. While Mr. A initially refused to give his fingerprints, he accepted to do so with Constable F and another unidentified member the next morning before going to court.

Mr. A was released on bail, and as part of his bail conditions, he had to surrender all his weapons. Constable G and Constable H went to Mr. A's home on January 6, 2009 to retrieve them.

Mr. A complains that excessive force was used during his arrest and handcuffing, during his transfer to the cells, and during the fingerprinting process. Mr. A alleges that he was restrained in a chair with a "bag" over his head for two hours; that he was injected with an unknown substance on his left shoulder, that a blood sample was taken from between two fingers and that members searched Mr. A's home without permission to seize his firearms.

The RCMP investigated the complaint and found that the allegations were either unfounded or unsubstantiated.

I am satisfied that the force used during Mr. A's arrest, handcuffing and transfer to the cells was reasonable; that no force was used during the fingerprinting process; that no blood sample was taken from Mr. A; and that Mr. A was not injected with any substances. I am also satisfied that while the members did not search Mr. A's residence to retrieve the firearms, they were justified to be there and to seize the weapons. However, I have determined that the RCMP members used excessive force during Mr. A's detention in the cells, in that they kept him in the restraint chair with a spit mask over his face for over five hours, which is an unreasonable amount of time in the circumstances.

Overview of the Process

On January 9, 2009, Mr. A complained to the Commission for Public Complaints against the RCMP (the Commission) regarding the conduct of Constables B, C, D, G, H and Sergeant E of the Coquitlam RCMP Detachment.

Pursuant to the RCMP Act (the Act), the complaint was investigated by the RCMP. According to the Act, on completion of the investigation, the RCMP Commissioner (or his delegate) shall send his Final Report to the complainant summarizing the results of the investigation and any action taken to resolve the complaint. The Commissioner's Final Report dated March 10, 2009 did not support Mr. A's allegations.

Mr. A was not satisfied with the RCMP's disposition of his complaint. The Commission received Mr. A's request for review on April 21, 2009. It received from the RCMP the investigation documents relating to this matter on June 3, 2009.

Commission's Review of the Complaint

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

My conclusions and findings below are based on the careful review of Mr. A's complaint, cell block videos, audio recordings, RCMP photographs, RCMP policy on restraining devices, RCMP investigational file, RCMP operational file, cell block logs, statement of a witness, prisoner report, bail documents, and Final Report.

Facts

On January 1, 2009 at approximately 6 p.m., the Coquitlam RCMP received a complaint that a possible impaired driver was driving erratically and knocking over traffic cones on the Lougheed Highway in Port Coquitlam.

Constables  B and C of the Coquitlam RCMP Detachment responded to the call, and found Mr. A's vehicle stopped on the highway, with its hazard lights activated. The Constables intercepted and stopped Mr. A. They asked Mr. A for his driver's licence, and while talking to him, they noticed a strong odour of liquor coming from the car, and observed that Mr. A had red, glassy, watery eyes. Mr. A denies having had any alcoholic drinks.

Constable C noticed that a shotgun was in plain view beside a gun case, on the back seat of the vehicle. Constable B, who also confirms having seen the shotgun, asked Mr. A to step out of the vehicle, so that he could search for other weapons. Mr. A allegedly refused to step out and resisted the members' efforts to remove him from the car. The members decided to arrest Mr. A, but Mr. A actively resisted his arrest, by trying to get away from the members, refusing to put his hands behind his back and generally acting in a belligerent manner, inviting the members to "taser" him. During the arrest, the members found that Mr. A was wearing an ammunition belt and had a hunting knife in his pockets. Sergeant E also assisted with the arrest, and removed what he described as live rounds from the firearm.

Mr. A was arrested for driving while under the influence of alcohol and for unlawfully transporting a firearm in a careless manner, as his shotgun was loaded. When Mr. A was placed in the back seat of the police car, he refused to put his feet in the car, and when the members physically pulled him in, he started kicking the inside of the car. Mr. A's car was towed, following the issuance of a 24-hour driving prohibition and he was transported to the Coquitlam RCMP Detachment. Constable D also attended and took photographs of the firearm on Mr. A's backseat. She took a statement from the witness who had called the Coquitlam Detachment to report Mr. A. The members also noted that the firearm was loaded.

As I was able to determine from a careful review of the cell block videos, when Mr. A arrived at the detachment, he was acting in a very belligerent manner. He was insulting the members, refusing to have his handcuffs removed, refusing to submit to a breath sample test, and refusing to remove his boots so that he could be placed in a cell.

When the members attempted to removed Mr. A's boots, he became violent and tried to kick one of them. Up to five members had to restrain Mr. A on the floor of the cell block reception. Mr. A was aggressive, was screaming and had to be physically escorted to his cell. The members then made the decision to restrain him in a restraint chair. They also decided to place a spit mask over his face, as he was continuously screaming and spitting when screaming. Ambulance technicians were called in around 8:20 p.m., but noted in their report that Mr. A refused to cooperate. They also noted that Mr. A appeared intoxicated, that his speech was slurred and that they smelled alcohol on his breath. Mr. A remained restrained in the chair for over five hours, until approximately 12:30 a.m.

According to Mr. A, he was not impaired, had not been drinking and his firearm was safely in its case in the back seat. He also alleges that the firearm was not loaded, but instead there were snap caps in the chamber. Mr. A explains his driving on the highway by suggesting that he was having mechanical problems with his vehicle, and submitted a mechanics invoice in support of his contention. Mr. A alleges that the police officers beat him during his arrest on the highway, and that despite it not being visible on the cell block videos, that he was dragged in the cell block, beaten by the members and choked when he refused to give his fingerprints, that he was given an injection, and that the two ambulance technicians took blood samples from him. He alleges that he was undressed in the cell, that air conditioning was blowing on him for hours and that he remained in that condition for two hours. He alleges that "abusive and vulgar language was used at all times" by the members. He alleges that he attended the hospital after his release and that the medical personnel asked him where he got all the bruises. He allegedly told them that he was a victim of police abuse. It should be noted that Mr. A failed to submit to the Commission his medical records, despite having been given an opportunity to do so.

Mr. A further submits that he was finally released from jail on January 5, 2009, and that the next day three members attended his home, without a warrant, to retrieve his firearms. He was threatened with arrest if he did not comply. He alleges that he is now being harassed by the RCMP, and that they attended his residence to provoke him, on January 8 and 9, 2009.

Constable B states that on January 8, 2009, he went to Mr. A's residence to serve him an administrative driving prohibition and to seize his driver's licence. There is no record of any members attending Mr. A's residence on January 9, 2009.

Allegation No. 1: On January 1, 2009, RCMP members of the Coquitlam Detachment used excessive force in arresting and handcuffing Mr. A while placing him in a police vehicle.

Mr. A feels that he should not have been arrested, and that he was doing nothing wrong. Further, he alleges that his firearm was safely stored in his vehicle.

In order to determine whether the amount of force used to arrest the complainant was reasonable, a determination must first be made as to whether the members of the RCMP had grounds for the arrest.

The Commission is not empowered to determine whether an RCMP member committed the Criminal Code offence of assault; that is a matter for the courts. An assault is a criminal offence that necessitates evidence proven beyond a reasonable doubt. A public complaint allegation of excessive force is part of the quasi-judicial process, which weighs evidence on a balance of probabilities. These are two very different things. The Commission is empowered to make findings and recommendations with respect to allegations of excessive force.

Section 25 of the Criminal Code permits police officers, when they are required or authorized by law to do anything in the administration or enforcement of the law as peace officers, and when acting on reasonable grounds, to use only as much force as is necessary to achieve that purpose. The RCMP's Incident Management/Intervention Model (IM/IM), which is used to train and guide members in the use of force, promotes risk assessment and depicts various levels of resistance behaviours and reasonable intervention options. The guide promotes the use of verbal interventions wherever possible, both to defuse potentially volatile situations and to promote professional, polite and respectful attitudes to all. These guidelines are based on situational factors when determining whether to use force and what amount of force is necessary in the circumstances.

Based on my review of the evidence, I find that the members had reasonable grounds to arrest Mr. A for impaired driving. Despite Mr. A's assertion that he had not consumed alcohol, an independent witness stated that Mr. A knocked down a number of orange traffic cones, was swerving all over the road, almost hit another vehicle, moving from lane to lane, was not using signals and was increasing and decreasing his speed in an abnormal manner. The members who dealt with Mr. A indicated that they observed signs of impairment and smelled alcohol on Mr. A's breath. Mr. A was arrested while driving his vehicle. As such, I find that the members had sufficient grounds to arrest him. Further, I do not accept Mr. A's denial of having had any alcoholic drinks, as even the ambulance technicians who attended the cell block to examine Mr. A confirmed that Mr. A appeared intoxicated.

The RCMP members were dealing with an extremely aggressive man. Considering Mr. A's conduct at the RCMP detachment, I believe Constables B and C's versions that the complainant was acting in an unreasonable and aggressive manner on the highway and that he tried to resist arrest. This behaviour is consistent with Mr. A's behaviour as captured on the cell block video. Sergeant E, who also attended the scene on the highway, confirms that Mr. A was being belligerent, loud, resisting arrest and kicking the inside of the police vehicle. He also noticed that Mr. A had a slurred speech.

The RCMP members had grounds for arrest, and given Mr. A's actions, I find that the force used to arrest Mr. A was reasonable. I do not lend any credibility to Mr. A's account that he was "beaten" by the members on the highway. Mr. A largely exaggerated the treatment he received from the members, despite the fact that a large part of his interaction with the members was videotaped, and as such, proven untrue.

Finding: RCMP members of the Coquitlam Detachment used reasonable force in arresting and handcuffing Mr. A while placing him in a police vehicle.

Allegation No. 2: On January 1, 2009, RCMP members of the Coquitlam Detachment used excessive force in restraining Mr. A in a chair, with a spit mask over his face, and leaving him in that position for two hours.

I have carefully reviewed the cell block videos from the time Mr. A arrived at the Coquitlam detachment. Mr. A was acting in an aggressive manner.

The RCMP's policy on the use of restraint chairs restricts its use to "prevent a prisoner from injuring himself/herself or others. The chair may also be used to prevent damage to cell-block property."¹

As such, I find that the decision to use a restraint chair was reasonable in the circumstances. Mr. A was acting aggressively and he tried to kick a member. The cell block videos clearly show that Mr. A was being hostile and acting out of control. While the sound on the videos was unclear at times, members have stated that Mr. A threatened them. Contrary to Mr. A's recollection, other than restraining him on the floor of the cell block and transporting him to the cell block where he was secured in a restraint chair, the members did not use any force on Mr. A. In fact, the members remained calm and tried to reason with Mr. A throughout, in order to calm him down, but Mr. A was acting irrationally.

As previously discussed, the Criminal Code permits members to use force when circumstances warrant it and the IM/IM guides the members in its application. The members' decision to place Mr. A in the restraint chair is in keeping with these principles.

However, I am concerned about the amount of time Mr. A was restrained. Mr. A was placed in the restraint chair at approximately 7:15 p.m., and was not removed from the chair until approximately 12:28 a.m. In all, he spent over five hours restrained in the chair.

RCMP policy on the use of chair restraints outlines that a prisoner must be constantly monitored while in a restraint chair and must be removed from the chair once he or she is composed and responsive.²

Furthermore, the reasons for using this type of restraint must be documented in notebooks and files, and if a prisoner is restrained for more than two hours, the reasons for this must also be noted.³

The prisoner log shows that Mr. A was regularly monitored. It notes that he was placed in the restraint chair for the members' safety and for his own. The decision had been reviewed and approved by Sergeant I. However, if the chair would have been used as per its intended use, Mr. A should have been removed soon after the ambulance technicians left his cell, when he became composed and responsive.

Further, there are no documented explanations or rationale giving the reasons why Mr. A was restrained for over five hours, contrary to RCMP policy.

A careful review of the cell block videos shows that while Mr. A was upset, he calmed down significantly right after the members left his cell, at approximately 7:40 p.m. At approximately 7:43, Mr. A started rocking the restraint chair from side to side. A member, possibly Constable B, took an audio recording of Mr. A around this time, and while Mr. A was rude, swearing and refused to cooperate with the member, this is not a reason to keep him in the restraint chair. Additionally, there is no indication that Constable B assessed the situation by verifying with Mr. A if he would calm down enough to be removed from the restraint chair.

After Constable B left the cell and left Mr. A alone, Mr. A calmed down again. It becomes apparent that Mr. A was getting agitated by the members' presence. As such, it would have been sufficient at that point to place him in a cell. There was no need to keep him restrained. Mr. A was angry, and he went from sitting calmly in his chair, to rocking the chair for a few seconds. At approximately 7:55 p.m., Mr. A just sat calmly in the chair. At this point, there was no reason to keep Mr. A restrained.

Mr. A started rocking the chair again at around 8:29 p.m. and once more, this lasted for less than a minute. At this point, he had been restrained for no reason for over thirty minutes. Given the purpose of the restraint chair, it seems reasonable that Mr. A would become agitated about being left in a restraint chair, with a spit mask over his face, for an indeterminate period of time.

At 8:30 p.m., two ambulance attendants entered the cell with the members to examine Mr. A. He refused all treatment. The members' decision to call ambulance services as a precautionary measure should be recognized as an exemplary practice, given that the risks associated with restraints are accentuated in cases where the prisoner is intoxicated, which I believe Mr. A was given the preponderance of facts.

The cell block video shows that Mr. A remained in the chair calmly until 9:18 p.m., when he became agitated again, screaming. However, after 9:30 p.m., he stopped screaming and calmed down.

I should note that Mr. A's assertion that he was left naked in the restraint chair is demonstratively unsubstantiated. The video shows that he was fully clothed while in the restraint chair.

My review of the evidence leads me to conclude that the initial use of the restraint chair was a reasonable response to Mr. A's conduct. Given his attempt to kick the members, his threats against them, and his irrational behaviour, the use of the restraint chair was a justified measure to prevent Mr. A from injuring members or himself, as his reactions were unpredictable. The members were unable to safely gain control of Mr. A. However, the policy with respect to the use of the restraint chair required that Mr. A should have been removed once he was composed and responsive. The video shows that Mr. A appeared to be much calmer and composed after the first thirty minutes in the chair. At the most, he should have been released from the restraint after the ambulance technicians left the cell, when he had calmed down. Given the foregoing, I find that the members did not comply with RCMP policy with respect to the use of the restraint chair. The decision to keep Mr. A in the restraint chair past that point in time was inappropriate and may lead to the conclusion that the restraint chair was used as a form of punishment, rather than a temporary measure to restrain Mr. A and prevent injury to himself or others. Finally, it is important to continually reassess a prisoner's condition while he is restrained in a chair, which was not done in this case until almost five hours after he was placed in the chair.

With respect to the spit mask, the members note that Mr. A was not spitting at them, but instead, was spitting because he was screaming. Mr. A had the spit mask over his face for the entire period he was restrained. I note that RCMP policy is vague on the use of spit masks. In these circumstances, I find that it was excessive to leave Mr. A in his cell with a spit mask over his face for such a prolonged period of time, especially since there was no demonstrated risk that Mr. A would spit on any of the members. Once the members left the cell, the concern about Mr. A's spitting while talking became irrelevant, and the mask should have been removed, especially given Mr. A's intoxicated state.

Allegation No. 3: On January 1, 2009, RCMP members of the Coquitlam Detachment used excessive force in obtaining Mr. A's fingerprints, in that a member choked him.

Mr. A did not want to be fingerprinted and photographed, despite the members' lawful request for him to cooperate with the process, pursuant to the Identification of Criminals Act. He alleges that he was choked during the fingerprinting and photographing process.

The videos clearly show that Mr. A was not choked by Constable F or by the other unidentified member who assisted with fingerprinting. In fact, faced with his refusal, the members patiently convinced Mr. A to cooperate and no force was used.

However, the prison log book shows that Mr. A was taken out of the cell at 2:14 a.m. to get fingerprinted and be photographed, but he refused and was returned to his cell at 2:37 a.m. The cell block videos were destroyed for that period of time, so I am unable to determine what occurred. However, I will note that Mr. A's allegations against the members of excessive use of force are not supported by the evidence and given that his version of events is totally at odds with the evidence, I do not consider his version as credible. Therefore, I accept the evidence of the members who indicate that no excessive force was used while fingerprinting Mr. A.

In addition, Mr. A has provided no medical evidence to support his allegation that a member choked him. Therefore, after considering all of the evidence, my view is that Mr. A was not choked and that excessive force was not used on Mr. A during the fingerprinting and photographing process.

Finding: RCMP members of the Coquitlam Detachment did not use excessive force in obtaining Mr. A's fingerprints and photograph.

Allegation No. 4: On January 1, 2009, RCMP members of the Coquitlam Detachment used excessive force in injecting an unknown substance into Mr. A's shoulder.

Allegation No. 5: On January 1, 2009, RCMP members of the Coquitlam Detachment used excessive force in taking a blood sample between two fingers of Mr. A's right hand.

After a careful review of the cell block video and the evidence of the members, there appears to be no indication that Mr. A was injected with any type of substance or that a blood sample was taken from him. The ambulance reports also show that Mr. A refused all treatment and the members confirm that this did not happen.

Further, Mr. A has provided no evidence in support of these allegations. As such, these allegations are unfounded.

Finding: RCMP members did not inject Mr. A with any type of substance and did not take a blood sample from Mr. A.

Allegation No. 6: On January 6, 2009, RCMP members of the Coquitlam Detachment unlawfully searched Mr. A's residence in order to seize his firearms.

Mr. A was granted bail, with certain conditions. One of the conditions was that he accompany a peace officer to the location of a firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance and any related authorizations, licences and registration certificates he may possess, and he surrender these items to the peace officer.

According to occurrence reports, Constable G and Constable H attended Mr. A's residence on January 6, 2009 to seize his firearms according to Mr. A's release conditions. Constable G's notes indicate that they seized the firearms in Mr. A's bedroom, without incident.

According to Constable H, Mr. A called the Coquitlam Detachment to have members attend his residence so that he could surrender his firearms according to his bail condition. Upon the members' arrival at the residence, Mr. A wanted to retrieve the firearms. However, the members asked to get them instead, given concerns about their safety following Mr. A's conduct towards the police. Constable H relates that Mr. A allowed them into his residence, showed them were the firearms were stored, and the weapons were accordingly seized.

Mr. A gives a different version of events. According to him, three members showed up at his residence on January 6, 2009, asked him to wait outside in front of his residence, were he was searched with his hands up. The members then went inside, without a search warrant, and seized his firearms. He was told that he would be arrested if he did not comply.

Because of Mr. A's widely inaccurate and unsubstantiated recollection of most of the facts surrounding his arrest, I cannot give any weight to his version of events. However, I have no reason to doubt the facts as related by both Constables G and H. Further, the members did not need a warrant to seize Mr. A's firearms, as the seizure was part of the bail conditions Mr. A agreed to. The members did not search his residence; they were invited in by Mr. A and removed the firearms. If Mr. A would have failed to allow the members to retrieve his firearms, they would have had to arrest him for failing to respect his bail conditions.

Finding: Constables G and H did not unlawfully search Mr. A's residence in order to seize his firearms.

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 RCMP Operational Manual, 3.4.

2 RCMP Operational Manual, 3.5, 2.9.

3 RCMP Operational Manual, 3.10, 3.11.