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

RCMP Act Paragraph 45.42(3)(a)

Vetted version for posting

September 1, 2009

Synopsis

This review arose from an incident which occurred on September 11, 2007. On that date, the complainant, Ms. A, had parked at a construction site during an episode relating to bipolar disorder, from which she suffers. She had been driving for approximately twelve hours in an attempt to find her physician or family members. A security guard saw her car parked on the site and went up to her car to advise her that she was trespassing on a construction site and had to leave. Ms. A did not respond, and the guard called 9-1-1 to request assistance, as he felt that "she wasn't all there."

Constables B (a cadet at that time), C and D of the Ridge Meadows RCMP Detachment in British Columbia attended. They knocked on the window and failed to get Ms. A's attention, after which they opened the vehicle's back door and managed to unlock the front driver door. They applied a pain stimulus to Ms. A, and she eventually got out or was helped out of her car. She was then placed on the ground, handcuffed behind her back and lifted back up. The members apprehended Ms. A under the authority of British Columbia's Mental Health Act. Emergency Medical Services personnel attended, and transported her to Maple Ridge Hospital.

Ms. A complains that the RCMP members used excessive force in their dealings with her. She also alleges that a female member called her a "bitch". In addition, Ms. A alleged that Sergeant E, the public complaint investigator, was biased in his investigation.

The RCMP investigated the complaint and found that the members were justified in apprehending Ms. A under the Mental Health Act, and that as a consequence, the use of force was appropriate. The RCMP also found that there was no supporting information that a member called her an inappropriate name.

After careful review, I find that the RCMP did not use excessive force when dealing with Ms. A. With respect to the inappropriate name calling, I find that there is insufficient information for me to make a determination. I will also make comments with regards to the issue of bias, and on the members' lack of note taking

Overview of the Process

On October 9, 2007, Ms. A complained to the Commission regarding the conduct of Constables B (a cadet at that time), C and D of the Ridge Meadows 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 June 2, 2008 did not support Ms. A's allegations.

Ms. A was not satisfied with the RCMP's disposition of her complaint. The Commission received Ms. A's request for review on May 11, 2009, and it received from the RCMP the investigation documents relating to this matter on June 19, 2009.

Commission's Review of the Complaint

It is important to note that the Commission for Public Complaints Against the RCMP (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 Ms. A's letter of complaint, the audio recording of Ms. A's statement, of Ms. A's husband's statement and of the security guard's statement to the public complaint investigator, the RCMP's investigational material, the RCMP's operational file, and the RCMP's Final Report.

Facts

Ms. A suffers from a form of bipolar disorder. While it has only affected her three times in her lifetime, she was having an episode in September 2007. On September 11, 2007 at around 4 p.m., she left her home by car, trying to find her physician, or family members to help her. She drove for approximately twelve hours, was in a confused state and was lost, when she stopped at a construction site at around 4 a.m., on September 12, 2007. A security guard saw her car parked on the site and went up to her car to advise her that she was trespassing on a construction site and had to leave. He stated to the public complaint investigator that she did not respond, was moving her lips but no words were coming out. He called 9-1-1 to request assistance, as he felt that "she wasn't all there."

Constables B, C and D attended. They knocked on the window to try to get her attention, but Ms. A kept her eyes closed and was not responding. Ms. A claims that she was terrified and exhausted. Eventually, the members noticed that the back door of the car was unlocked, so they opened it and managed to unlock the front driver door. Constable C applied a knuckle rub on her sternum, as a pain stimulus. Eventually, either Ms. A got out of her car, or was helped out of her car, placed on the ground, handcuffed behind her back and lifted back up. The members apprehended her under the Mental Health Act, and Ms. A was transported by Emergency Medical Services personnel to the Maple Ridge Hospital.

First Allegation: Constables B, C and D used excessive force in dealing with Ms. A.

In December 2007, Ms. A stated in an audio-recorded statement to Sergeant E, the public complaint investigator, that she did not know how many members or how many people were present, but that she thought that two members were present. In her request for review, Ms. A insists that there were four members present.

At the outset, four members were named in this complaint. In addition to the three members noted above, Constable F was also named. However, it was determined that Constable F had attended the scene after Ms. A had been handcuffed, and his only involvement was entering notes in the occurrence report with respect to the incident and calling Ms. A's husband after Ms. A was transported to the hospital. Consequently, as he was not directly implicated in this call, he was not included in the complaint.

Analysis

It should be noted that 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. As with similar models, the IM/IM was based at the time of the incident on the principle that the best strategy employs the least intervention necessary to manage risk. Accordingly, the best intervention causes the least harm or damage. 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 assessing situational factors to determine whether to use force and what amount of force is necessary in the circumstances.

Ms. A stated to the Commission that Constable B was not involved in the use of excessive force, and a review of the file seems to confirm this. As such, the allegation of excessive force will be analyzed with regards to the conduct of Constables C and D.

I note that there are significant changes in Ms. A's version of the events between the time she gave a statement to the public complaint investigator, and the request for review she filed with the Commission. As such, is it difficult to accept Ms. A's recollection of the events as a whole.

With respect to the pain stimulus, Ms. A stated in her request for review that she perceived it to be a "blow" to her sternum, rather than a rub. The facts and statements from the members and from the witness all corroborate that, in fact, the members attempted various techniques to get Ms. A's attention, such as talking to her, pinching her and touching her. When they failed to get a response, Constable C applied a sternum rub to Ms. A. Despite Ms. A's perception, it is unlikely that a blow was delivered to her, but she may have been startled by the stimulus. In their statement to the public complaint investigator, the members all state that when the pain stimulus was applied, Ms. A reacted by flailing her hands and screaming. She then quickly returned to her position, grabbing her steering wheel. I believe that she reacted as per the purpose of a pain stimulus, but Ms. A also returned to her passive, non-responsive state thereafter. In the circumstances, I find that the application of a pain stimulus was reasonable. Ms. A was not responding to the members' interventions, and they had to confirm that she was conscious.

It is not contested that Ms A was unresponsive and that except for chanting the word "love",¹ she was not responding to the members and remained passive.

With respect to Ms. A's allegation that a member ran up behind her, jumped on her and threw her to the ground, I find this to be unlikely. The witness, who gave a detailed account of the events, did not see a member jumping on top of Ms. A from behind. Ms. A was gently taken to the ground to be handcuffed, but was not jumped on. In the circumstances, the members' decision to handcuff Ms. A in this manner was not unreasonable. The RCMP's national operational manual states that handcuffs are used while "keeping in mind the circumstances and person's behaviour."² I note that the members could have chosen a different method for handcuffing Ms. A, instead of putting her face down on the ground, which, in hindsight, may not have been necessary; however, their conduct was not unreasonable under the circumstances. Because her responses were unpredictable, there was a need to ensure control prior to handcuffing.

Ms. A perceived the interventions of Constables C and D as frightening and aggressive. The public complaint investigation failed to examine the specific actions and verbal interventions of the members, so it is difficult to determine what type of verbal intervention was used by the members, and if there was any effort to adjust that intervention in order to appropriately deal with this specific situation. The members did not use notebooks, and there are no written records, save an occurrence report completed by Constable F, who was not an intervening member.

I note that Ms. A's husband had placed a call to 9-1-1 that afternoon, once he realized that Ms. A had left the home with the car. He was understandably worried about her condition and her ability to be out driving. Regrettably, the initial response was that the police could not do anything about it since they both owned the car. He received a subsequent call advising him that they would be looking out for her and do as much as they could, after taking down the licence plate number. It is not clear if Constables B, C and D had this information when they received the call about Ms. A.

Ms. A is able to function at a high level, despite her medical diagnosis. She has suffered only three episodes of manic depression in her lifetime, and as such is not on constant medication, but does follow the instructions of a naturopath. According to the Canadian Mental Health Association, 20% of the population will experience a mental illness at some point in their lives.³ It is estimated that in British Columbia, 7 to 15% of all police interventions involve people with mental illnesses.⁴ It is thus crucial for members to be able to indentify a person with a mental illness and adapt their intervention thereto. Police encounters with people living with mental illnesses are an ongoing concern for the Commission.

Staff Relation Representative Dave George recently wrote⁵ that:

"At the present time, there is no national standard for Mental Health First Aid Training. It is extremely important that a CTS [Course Training Standard] be developed to ensure members are fully trained when called to assist or deal with persons with mental health issues. While some are indeed very docile, there are others, through no fault of their own, who can become extremely aggressive and combative. All the training and verbal intervention skills that members can utilize should be made available to ensure safety is not compromised in any way. As first responders, members need as much training as possible to ensure they're able to deal with sometimes unpredictable persons and to recognize signs or symptoms that may escalate so they may respond accordingly."

While members cannot be required to diagnose mental illnesses, there is a need to train members to recognize the signs of mental illness and to learn how to assess risks associated with different types of mental illnesses, as well as to apply appropriate communication techniques to people dealing with mental health issues, which will help de-escalate situations. In situations such as this one, it can be a difficult balancing act, as the members need to remain vigilant and safe, yet provide reassurance to a person who is demonstratively frightened and not responding to police direction.

Finding: Constables B, C and D did not use excessive force in dealing with Ms. A.

Second Allegation: An unidentified RCMP member called Ms. A a "bitch".

Analysis

Ms. A believes that a member, likely Constable C, called her a bitch. While the security guard was not asked about this allegation during the public complaint process, he did not report this, and there are some inconsistencies in Ms. A's recollection of the manner in which she was handcuffed, namely her belief that Constable C ran from behind her, jumped on top of her and slammed her into the ground, which is unsupported.

As such, I do not have sufficient information to enable me to make a determination.

Finding: I do not have sufficient information to determine if a member called Ms. A an inappropriate name.

Conflict of interest and bias

Ms. A felt that Sergeant E, the public complaint investigator, was biased in his investigation. She made a number of allegations in support of her belief. A review of the file raised sufficient concerns that a new separate complaint was filed with the Commission by Ms. A. As per the legislative process, the RCMP will investigate the complaint, and should Ms. A be unsatisfied with the disposition of her new complaint, she may request a review with the Commission.

Note taking

I note that none of the members involved in this complaint took any notes. Further, the occurrence report was entered by Constable F, who was not present during the incident and had no personal knowledge of it. Constable F came to the scene after Ms. A was already handcuffed. The occurrence report fails to even mention that an arrest was made or that force was used.

Both the Commission and the RCMP Commissioner have repeatedly emphasized how important it is for police officers to keep accurate and contemporaneous notes of their activities. Moreover, it is in keeping with RCMP policy, training and long-standing police practice.

The IM/IM also emphasizes the importance of the decision-making rationale in keeping detailed records of interventions which require the use of force. The RCMP outlines a non-exhaustive list of questions that should be used by the member when recording the details of an intervention and guides the members to "record in as much detail as possible, as soon as possible after the occurrence of use of force, a full description of the force actually used and a full description of all the indicators of potential or actual violence which would explain the peace officer's apprehension and justify the resort to force and the degree of force utilized."⁶

Finding: Constables B, C and D failed to meet the RCMP's standards pertaining to note taking and record keeping.

Having considered the complaint, I hereby submit my Interim Report in accordance with paragraph 45.42(3)(a) of the RCMP Act.

_____________________
Paul E. Kennedy
Chair

1 Ms. A states that she was saying "love" to indicate her need for help. She states that she was medically unable to voluntarily respond to their questions.

2 RCMP Operational Manual, section 17.6(2.1).

3 Source: Fast Facts: Mental Health/Mental Illness (The Canadian Mental Health Association).

4 Canadian Mental Health Association, British Columbia Branch, Mental Health and the Criminal Justice System.

5 "Mental Health First Aid Training", SRR Dave George, RCMP Frontline Perspective, The Staff Relation Representative Program's National Magazine, 2009, Vol. 3, no. 2.

6 Incident Management/Intervention Model background information.