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

RCMP Act Paragraph 45.42(3)(a)

Vetted version for posting

November 9, 2009

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Synopsis

This review arose from the RCMP's disposition of a complaint filed by Mr. A with respect to an incident that occurred on March 11, 2006. At the time of the incident, Mr. A was the general manager of a drinking establishment located in Surrey, British Columbia. A number of members from the Surrey RCMP Detachment attended the hotel bar on the night in question in response to calls from patrons. Mr. A was ultimately arrested with force for obstructing a police officer for failing to produce the liquor licence and to identify himself. Mr. A alleges that he was assaulted by the officer, that the force used against him was improper, that the officers asked Emergency Services personnel to falsify reports, that the officers interfered with his medical care, and that the officers used unprofessional language when dealing with him.

The RCMP investigated the complaint and found that except for unprofessional language used by a member, the allegations were unsupported.

For the reasons outlined below, I am satisfied with the RCMP's response to Mr. A's allegations. However, I found several issues with respect to the investigation. Specifically, I found that there was an appearance of bias displayed by the RCMP's conduct toward Mr. A when he first reported the alleged assault, that the RCMP failed to take timely action to initiate an investigation into Mr. A's allegations, and that the public complaint investigation was not completed in a timely manner.

Overview of the Process

On or about March 13, 2006, Mr. A complained directly to the RCMP about the conduct of Constables B, C, and D, who were involved with the incident leading to Mr. A's arrest.

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 Report, dated June 22, 2009, found that Constable B used unprofessional language when dealing with Mr. A. The RCMP apologized to Mr. A and indicated that Constable B would be provided with guidance with respect to his conduct. The RCMP's Final Report did not support the remaining allegations.

Mr. A was not satisfied with the RCMP's handling of the complaint, and on July 14, 2009, he asked the Commission to review the matter. The Commission received the investigation documents from the RCMP on August 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 Mr. A's complaint, the public complaint investigator's report, Mr. A's statements, pictures of Mr. A's injuries, the video surveillance footage from the bar, the RCMP's general and supplementary occurrence reports relating to the incident, the statements of various bar staff and other witnesses, the statements of the members who were present at the bar at the time of the incident, the members' notes, the RCMP's Final Report, as well as other relevant documentation.

Summary of the Incident

As noted above, Mr. A is the manager of a hotel bar. On March 11, 2006, just before 1 a.m., a number of members from the Surrey RCMP Detachment attended the hotel bar in response to calls from the public.

Constable C initially responded to a call about a fight going on at the hotel bar. He was accompanied by Constable D. He stated that by the time he arrived, the fight had been broken up. He did a "walk through", observing that the bar was fairly crowed and that there were many intoxicated persons. He discovered a male who was particularly intoxicated (staggering and slurring his speech), and who did not have identification and appeared to be under the age of nineteen. Constables C and D led the male outside and spoke with a manager, E, and a doorman, F, about the matter. Mr. F indicated that they checked the male's identification the week prior and knew he was of age. Constable C indicated that the male needed to have identification on him, and that they had violated the Liquor Control and Licensing Act. Constable C also explained that the licence needed to be hung on the wall, that it was not there, and that they required it to issue a ticket. Mr. F and Mr. E refused to produce the licence. During their dealings outside the bar, Constable B arrived.

Constable C stated that while they were standing outside, a person later identified as Mr. A came running out "screaming, arms flailing, swearing away." At that point, Constable C was attempting to place Mr. E into his police car. Constable B approached Mr. A and asked that he produce the liquor licence, and an altercation ensued. Constable C heard Constable B ask for the licence and "something to the effect that [Mr. A] was obstructing him." Mr. A walked away from the bar door towards another door and Constable B followed. Mr. F started to follow after them. Both Constables C and D expressed concern that Mr. F might interfere with Constable B, and so he was stopped and placed in a police vehicle to prevent such interference.

Constable B stated that he attended the hotel bar in response to a call for backup. He saw Constables C and D outside, dealing with Mr. E. He recalled seeing Constable C arrest Mr. E and placing him in the police car. A man later identified as Mr. A started to interfere, so Constable B approached him. Constable B stated that he received some information of what was going on from other members. Mr. A said that he was the manager. Constable B told him that some tickets would be issued and that he did not have his permit displayed inside, and asked Mr. A to get it for him. Mr. A swore at him and started walking away. Constable B stated that he said something to the effect of "well okay, hold on a sec here, I am trying to do an investigation, come back." Mr. A again said "Fuck you, fuck this," so Constable B told him that if he was not going to give him the liquor permit, he would be giving him the ticket on behalf of the bar and that he would need to see his identification, as he did not know his name at the time. Mr. A again swore at him and walked away. Constable B told him that he was arresting him for obstruction, but Mr. A ignored him. Constable B followed Mr. A to the lounge entrance. Inside the two doors (a glass foyer), Constable B used force to arrest Mr. A.

A discussion of the use of force and the subsequent medical treatment provided to Mr. A will be detailed later in this report. Ultimately, Mr. E, who was released after Mr. A's arrest, obtained the licence from the office safe and showed it to Constable C. Constable C issued a Police Liquor Premises Check for failure to produce records (i.e. for failure to produce the liquor licence).

First Allegation: Constables Ward, C and D assaulted Mr. A.

Second Allegation: Constables Ward, C and D used excessive force in their dealings with Mr. A.

The Commission does not have jurisdiction to determine whether an RCMP member committed the Criminal Code offence of assault; that is a determination made by the courts. The Commission is, however, empowered by statute to make findings as to whether an RCMP member used excessive force to carry out his or her duties.

The findings and recommendations made by the Commission are not criminal in nature, nor are they intended to convey any aspect of criminal culpability. Although some terms used in this report may concurrently be used in the criminal context, such language is not intended to include any of the requirements of the criminal law with respect to guilt, innocence or the standard of proof.

a) The Arrest

Police officers are empowered to use reasonable force in executing their duty. To determine whether the members were authorized to use reasonable force in effecting the arrest of Mr. A, it is first necessary to determine whether the arrest was proper. Mr. A was arrested for obstructing a peace officer due to his failure to produce the liquor licence and subsequent refusal to identify himself. He does not deny that he refused to provide the liquor licence or that he would not identify himself.

One of the required elements for the charge of obstruction is that a person must obstruct a peace officer in the lawful "execution of their duty."² A person may not be convicted of obstruction merely by doing nothing, absent a common law or statutory duty to do so.² Obstruction "requires either some positive act, such as concealment of evidence, or an omission to do something which one is legally obliged to do."³ To satisfy the elements of the offence of obstruction, there must be evidence that the officers had reasonable grounds to believe that the operators of the establishment had committed at least one of the alleged infractions under the Liquor Control and Licensing Act (LCLA) and, consequently, that Mr. A was obliged to produce the liquor licence and to identify himself in relation to those infractions.

Alleged Infractions

There were three main contraventions of the LCLA alleged by the members:

• 1) permitting persons under the age of 25 into the establishment without proof of age;
• 2) failing to post the liquor licence; and
• 3) failure to produce the liquor licence upon request.

Mr. A states in documents submitted to the Commission that no infractions were committed by the establishment. He, in part, relies on a memorandum from Crown counsel to the RCMP, dated June 7, 2006, which states:

The Liquor Control and Licensing Act Regulations require an establishment to request ID from anyone appearing to be under 25 but do not require the establishment to do so every time the person appearing to be under 25 arrives at the establishment. The Regulations also require a liquor license to be posted in a conspicuous place in the establishment but do not require anyone to produce the document on request of a peace officer or anyone else.

[...]

While it is not unreasonable for the police to suspect that a contravention had occurred at that point, there was no evidence that one had been committed. That is, the police had positive information that [the young male] was over 19 and, therefore, not a minor AND that the establishment had fulfilled its duty by obtaining identification from him on another occasion [emphasis in original].

Constable B's Continuation Report, dated March 11, 2006, indicates that he was told by Constable C that the bar's employees refused to show the police the liquor licence, that there were multiple patrons who appeared to be underage inside the bar without identification, and that Constable C intended to serve Mr. A with a violation ticket. Constable B stated that he asked Mr. A to get the licence, but Mr. A told him to "fuck off" and started to walk away. He asked Mr. A for identification, since he did not know his name at that point in time, and Mr. A swore at him again, entered the building, and slammed the door shut. In his statement, Constable B indicated that after Mr. A refused to produce the licence and identification, he started walking away. Constable B instructed him to come back or he would arrest him for obstruction, but Mr. A continued to walk away.

With respect to the presence of persons under the age of 25 without identification, it appears that Constable D was not satisfied with Mr. F's statement that he had identified the young male on a prior occasion. Constable D stated to the public complaints investigator: "[...] he looked quite young. [...] I thought he was feeding me a line when he said he was 23." According to his account, he was the officer who primarily dealt with the young male after they exited the bar. He also indicated that the RCMP has had dealings with underage persons being admitted to the bar. Both Constables D and C referred to ongoing problems with the bar. It appears to me that the members suspected that the male may have been a minor, which would be in contravention of section 35 of the LCLA.

Constable C also stated that the liquor licence was not posted, as required under the LCLA. Conversely, Mr. A stated that a copy of the licence was posted in the bar but that the original was kept in a safe in the office. However, Mr. F, an employee of the hotel, stated that the City of Surrey business licence was hung up behind the bar, but the liquor licence was kept in the safe. Consequently, I find it more probable than not that the liquor licence was not posted, contrary to section 37 of the LCLA Regulation, and would have constituted an offence under section 48 of the LCLA.

In my view, there was evidence of contraventions under the LCLA. Constable B subsequently requested that Mr. A produce the liquor licence of the establishment. Constable C noted in his report that three different employees initially refused to produce the document. Section 73 of the LCLA permits designated persons, which include police officers, to inspect establishments licensed under the LCLA, as well as records, liquor and other things associated with the operation of the establishment. It also states that a licensee must promptly produce and submit for inspection any record or thing requested by a person acting under the authority of that section. Therefore, if the liquor licence is not posted and an officer requests to see it, the licensee has a legal obligation to promptly submit it for inspection. As the person in charge of the establishment, Mr. A had an obligation to produce the liquor licence. By not producing the liquor licence, Mr. A was interfering with the members' exercise of their inspection powers under the LCLA.

In addition, Mr. A interfered with the officers' ability to process the contraventions. Police generally record evidence of contraventions on a licensed premises check (LPC) form and give a copy of the LPC to the licensee at the time they identify the alleged contravention. The LPC is later submitted to an inspector of the Liquor Licensing and Control Branch, who decides what action to take against the licensee. The LPC requires the identification of the licensee. That information is contained on the liquor licence, which Mr. A and other bar staff refused to produce. When Constable B subsequently requested that Mr. A identify himself so that he could issue the LPC to Mr. A on behalf of the bar (since he could not confirm the licensee), Mr. A refused to do so.

Obstruction

As noted above, Mr. A had an obligation to produce the liquor licence upon Constable B's request, and wilfully refused to do so. He also interfered with Constable B's ability to issue an LPC for the contraventions of the LCLA by failing to produce the liquor licence and subsequently failing to identify himself. Despite being told that he would be arrested for obstruction if he continued not to cooperate, Mr. A continued to walk away from Constable B. In my view, Mr. A's actions constituted the Criminal Code offence of obstruction.

Authority to Arrest

The question remaining is whether Constable B had the authority to arrest Mr. A. The power to arrest is a limited one.⁴ In circumstances such as these, a police officer may not arrest a person unless they believe on reasonable grounds that the public interest, having regard to all of the circumstances, including the need to establish the identity of the person, may not be satisfied without arresting the person.⁵

Constable B stated that he had seen Mr. A on one other occasion, while accompanying another officer to the hotel bar, but that he did not know his name at the time. When he confirmed Mr. A's identify, he released him on a promise to appear. Based on the evidence before the Commission, I am satisfied that, on a balance of probabilities, Mr. A had committed the offence of obstruction and that it was necessary in the public interest to arrest Mr. A in order to establish his identity.

Finding: Mr. A had committed the offence of obstruction and it was necessary in the public interest to arrest Mr. A in order to establish his identity.

b) Use of Force

Mr. A's Statements

Mr. A stated that he told the officer that the licence was in the safe, and that the officer could accompany him to the office. Instead, the officer demanded that he "bring it out NOW!" On his way to his office, an officer yelled a racial slur at him (discussed further below), so he said: "Fuck You! ....if you want to see ah, Liquor Licence, why don't you go to Victoria get your own copy then [...]." He continued to walk to the doors of the lounge (which also led to his office), when he felt people charging behind him. When he opened the front door, someone sucker-punched him. Then someone hit him behind the head and he fell down.

It appears that Mr. A believes that he was struck with a baton based on statements made to him by other persons. For example, he stated that Mr. E saw Constable B using the baton and told him that. At one point he stated: "[A]ccording to ah, I realized that" an officer was using the baton to hit him on the head. As such, I do not accept that the allegation that he was hit with a baton comes from Mr. A's recollection of events.

Mr. A also stated that he was kicked and punched repeatedly while he was on the ground. The officers reached inside his pocket, grabbing his private parts a couple of times, to take out his wallet. He was handcuffed and lifted off the ground. In one statement he indicated that Mr. E could see them from the bar, through another door. In another, he stated that Mr. E could see the altercation from the police vehicle he had been placed in.

Mr. A further stated that he does not use coarse language, and that he did not lose his temper until he heard the racial slur.

Statements of Other Witnesses

Mr. F stated that after he was handcuffed and put in the police vehicle, Mr. E came out, was thrown down to the ground, handcuffed and put in a police vehicle. The officers pulled out their extendable batons, started hitting Mr. A, and he fell to the ground. During this, the officers were screaming "you fucking faggot, you Chink homo," or something to that effect. He stated that he saw the officers tackle Mr. A. With respect to Mr. A's demeanour, he stated that Mr. A came out screaming at the officers and telling them that they should not be there. A diagram initialled by Mr. F puts Mr. E in a police vehicle that does not have a view of the doors of the lounge.

Ms. F is the wife of Mr. F and was working coat check at the time of the incident. She stated that she only went outside after Mr. A was beaten. She indicated that she did not witness the altercation, but did see an officer with a baton out, whom she believed to be a Constable G (although it appears from the record that Constable G was not present during the incident). She heard someone, possibly Constable G, yelling the alleged racial slur. A diagram that she provided showed the police vehicles in front of the bar doors, a different location than indicated by the subject members and Mr. F.

Many attempts were made by the two RCMP investigators assigned to the file to contact Mr. E, without success. However, during the review process Mr. A submitted to the Commission two handwritten documents that indicate that they are written by Mr. E. They state that he was arrested and placed in the police vehicle for about 15 minutes before Mr. A came outside. An officer asked Mr. A to get the licence and called him a "little Chinese faggot." Constable C and another officer pulled out their batons, and hit Mr. A with them. Then "a couple of other cops ran up and assaulted him for at least three minutes."

Mr. I is the brother of F and was also working at the hotel bar on the night of the incident. (Note: all future references to Mr. F refer to F.) He indicated to the investigator that the officers grabbed Mr. A, then pinned him to the floor. He did not observe any of the officers hitting Mr. A, but saw them handcuffing him. He indicated that during this time Mr. E and F were already in police vehicles. He did hear a member call Mr. A a "Chinese faggot," but his back was turned when it was said and he did not see who made the statement. He did see a member with a baton, but he does not know if he made it to the lounge.

H, a waitress at the hotel bar that night, provided a written statement; however, it indicates that she did not witness the altercation and only saw Mr. A after he had been handcuffed by the members. Another waitress, J, also told the investigator that she did not see the police hit Mr. A.

Member Statements

Due to their dealings with other persons (for example, Mr. E and Mr. F) at the time, no members witnessed the physical altercation that took place between Constable B and Mr. A. Constable D admits to having his baton out when dealing with other staff, but indicates that he was not present during the physical altercation except as indicated below.

Constable B stated that after telling Mr. A that he was arresting him for obstruction, Mr. A walked toward the doors of the lounge; Constable B followed. Mr. A started to go in the doors and pulled the doors closed. Constable B yanked the door open, walked inside, grabbed Mr. A by the arms and told him that he was under arrest. Mr. A turned around to face him, dropping what was in his hand (believed to be change and bills, or something to that effect). Constable B stated that "all he saw was a motion with his right hand coming up. He believed that Mr. A was going to strike him, so he rushed him into the wall and brought him down to the ground, with the intention of handcuffing him. He believes that Mr. A hit his head as he went to the ground; he was bleeding from the head wound, but it did not look serious.

At that point, Mr. A was on his back, kicking and flailing. Constable B tried to control him, but they were sliding around in the blood that was on the tile floor. Mr. A was screaming loudly. Constable B states that he struck Mr. A once in the top of the head area with a closed fist, with the intent to stun him long enough to roll him over on his stomach to facilitate the handcuffing. It did not work, so he struck him a second time, which was successful. At this point, other officers at the scene indicated that they had been drawn by the commotion and observed Mr. A flailing and screaming while Constable B tried to handcuff him. Constable D arrived and assisted with the handcuffing by placing his foot on Mr. A's shoulder to help control him.

Analysis

In executing their duties, police officers are authorized by section 25 of the Criminal Code to use as much force as necessary. However, the officer must be acting on reasonable grounds. In determining whether the amount of force used by the officer was necessary, one must look at the circumstances as they existed at the time the force was used. The courts have been clear that the officer cannot be expected to measure the force used with exactitude.⁶

The RCMP has adopted an Incident Management/Intervention Model (IM/IM) that allows for training and supervision of members to ensure compliance with the principles set out in the Criminal Code with respect to the use of force. Under the IM/IM, use of force is scalable starting with a verbal request for compliance and increasing use of force to compel compliance up to the use of deadly force. There were seven principles underlying the model that was in place at the time of the incident:

1. The primary objective of any intervention is public safety.
2. Police officer safety is essential to public safety.
3. The intervention model must always be applied in the context of a careful assessment of risk.
4. Risk assessment must take into account: the likelihood and extent of life loss, injury and damage to property.
5. Risk assessment is a continuous process and risk management must evolve as situations change.
6. The best strategy is to utilize the least amount of intervention to manage the risk.
7. The best intervention causes the least amount of harm or damage.

It is incumbent upon the member to perform a risk assessment, first determining which of the five behaviour classifications (cooperative, non-cooperative, resistant, combative and potential to cause grievous bodily harm or death) the subject's actions fall into. Consideration must also be given to the situational factors specific to each incident. These include weather conditions, subject size in relation to the member, presence of weapons, number of subjects and of police, as well as a host of other incident-specific considerations.

Members are also taught to be alert to threat cues such as body tension, tone of voice, body position and facial expression, as they may indicate the potential for a suspect to display more or less resistant behaviours.

I have great difficulty accepting the version of events as put forward by Mr. A and the bar employees, as their statements are contradictory and inconsistent in many ways. In addition, it is clear that all of them discussed the events prior to giving their statements, as they often made statements about things that they later admitted they did not witness themselves but heard from others. This leads me to question the accuracy of their assertions. I find the statement of Constable B to be more consistent and credible, and, as such, have afforded it more weight. I also find that what may have been interpreted by Mr. A to be punches and kicks while he was down on the ground were more likely Constable B's efforts to turn him over to handcuff him rather than punches or kicks.

At the start of the altercation, Constable B was aware of the following situational factors: The people employed at the bar are known to carry prohibited weapons, known to be anti-police and known to be violent with police. The bar employees were being uncooperative with the officers in attendance. There had already been fighting amongst patrons that evening, as evidenced by the calls from the public. There were approximately several hundred patrons at the bar at the time of the incident. Constable B had seen Mr. A about a month prior to the incident, when he accompanied another officer to the hotel bar. According to Constable B, Mr. A flipped over bar tables, and his bouncers had to tackle him to the floor to prevent him from assaulting the other officer.

I accept that Mr. A was resisting arrest. I also accept that whether or not Mr. A was raising his arms in more of a defensive move (which Constable B puts forward as another possibility), it was reasonable for Constable B to believe in all of the circumstances that Mr. A was attempting to hit him, which places his level of resistance in the combative category. Mr. A continued to be combative as he was taken to the ground. As such, it was open to Constable B to use a push to take Mr. A to the ground and then a strike, which is known as a "hard" empty-hand technique, to subdue Mr. A enough to put him in a position to be handcuffed. There is no reliable evidence to support the assertion that Mr. A was sucker-punched or hit with a baton.

I acknowledge that officers must be judicious in their decisions to apply strikes to vital areas such as the head, as they pose a greater risk of harm to the subject than other areas of the body. However, I appreciate the fact that the member was in a confined space, that Mr. A was combative, and that it was for the safety of all involved that Mr. A be subdued and handcuffed as quickly as possible, particularly given the history of the bar and some of the employees who were present that night. As such, I do not find it unreasonable for Constable B to have used the force that he did in Mr. A's arrest.

Finding: The force used by Constable B in his arrest of Mr. A was not excessive.

Third Allegation: Constable B attempted to convince Emergency Services personnel to falsify their reports relating to Mr. A's injuries.

The RCMP does not dispute that Mr. A suffered a head wound and scrapes and bruising as a result of Constable B's use of force during his arrest. All parties also agree that Mr. A slipped and fell on his way to the ambulance. Mr. A alleges that Constable B told the ambulance attendants to "remember" that his head injury was due to that slip and fall. Constable B stated that he did not ask the ambulance attendants to falsify their records.

One of the ambulance attendants, Mr. K, could not recall any details about Mr. A's injuries and indicated in a written statement that he did not observe Mr. A's injuries prior to his slip and fall, as it was dark out. He does, however, state that there was no attempt to falsify any of the paperwork.

The second attendant, L, provided a more detailed account of his dealings with Mr. A and the involved members. He indicated that he first saw Mr. A at the police cruiser. He stated:

After some convincing he allowed us to examine his wounds consisting of bleeding from the scalp, due to low light we asked to move the patient to the ambulance. On the move to the ambulance the patient slipped on some ice and struck his head on the side of the ambulance. ... Mr. A's injuries consisted of a two inch laceration on the top of his head.

He further stated that the officer did not ask him to falsify the report.

I see no reason to question the veracity of the statements provided by the ambulance personnel. As such, I find that Constable B did not ask the ambulance attendants to falsify their reports.

Finding: Constable B did not ask the Emergency Services personnel to falsify their reports relating to Mr. A's injuries.

Fourth Allegation: Constable B refused to allow Mr. A to be taken to the hospital until he had signed a statement.

Fifth Allegation: Constable B failed to ensure that Mr. A was taken to the hospital expeditiously.

Mr. A stated that Constable B told him that he could not go to the hospital until he signed a document, which said that he had to go to court. He stated that he signed it because he needed to go to the hospital, but he noted on the document that he had been beaten up by the RCMP. He further stated that the two ambulance staff told him that if he did not sign the statement, they could not take him to the hospital; he felt that he had no choice but to sign the document. He also complains that his trip to the hospital was delayed by the ambulance personnel cleaning his blood from the officer's coat.

On this issue, Mr. L stated:

No, the officer was going to go with us but the patient was displeased with being in the same vicinity as the officer so while we were convincing the patient to go to the hospital the officer filled out a promise to appear form and that was the form the patient signed in order for the officer to not have to attend with us to the hospital.

With respect to allowing the attendants to take Mr. A to the hospital, Mr. L stated:

No, if anything the patient was not allowing us to do anything to aid in his treatment as he wanted pictures taken. At no point did the officer not allow us to do our job. At the hospital the patient would not allow the triage nurse to see him until pictures were taken and when the triage nurse stated they did not do that she directed him to the phone in the lobby to call Surrey RCMP to file a complaint.

Both ambulance personnel told the investigator that Mr. A's care was not jeopardized by first decontaminating Constable B. At the time, Mr. L was dealing with Mr. A.

Analysis

Pursuant to section 498 of the Criminal Code, a person who has been arrested without warrant shall be "release[d] [...] on their giving a promise to appear," absent certain circumstances (such as the need to establish the identity of the person, to prevent the continuation or repetition of the offence, or to ensure the safety and security of any victim or witness). It is standard practice that any person who does not need to be held in custody for any of the aforementioned reasons will be released upon the issuance of a promise to appear. Otherwise the person is lodged in cells until they can be brought before a judge or justice of the peace.

I accept the evidence of the ambulance personnel that Constable B was prepared to accompany them to the hospital had Mr. A not signed the promise to appear. However, for all involved, it was more desirable for Constable B not to accompany them given Mr. A's continued reaction to his presence. Again, I find no reason to question the veracity of the statements of the ambulance personnel. Their statements were consistent, and I find them to be reliable.

Based on the evidence, I find that Constable B did not refuse Mr. A medical treatment unless he signed the promise to appear. I also find that the decontamination of Constable B did not result in an unreasonable delay in getting Mr. A the appropriate medical treatment. If anyone delayed his medical treatment, it appears to have been Mr. A himself.

Sixth Allegation: An officer used unprofessional language while dealing with Mr. A.

As indicated above, Mr. A alleges that an East Indian member, later identified to be Constable C, yelled inappropriate statements at him, such as "Chinese faggot." All of the members present deny that any such statements were made. Two other witnesses, Mr. F and Mrs. F, indicate that they heard such a statement, although they did not know who said it. However, since Mrs. F indicates that she did not exit the bar until Mr. A had already been handcuffed, I find it unlikely that she would have overheard anything that was said just prior to the arrest. In addition, as noted above, I find that the statements given by these witnesses were generally inconsistent, and Mr. F and Mrs. F were not able to attribute the statement to a specific officer. On the other hand, the evidence of the members was generally consistent. As such, I find that there is insufficient evidence to support the allegation that Constable C called Mr. A a "Chinese faggot."

However, during his statement, Constable B admitted to telling Mr. A to "fuck off" several times, in response to Mr. A's use of the same language. The RCMP found that the use of such language was unprofessional, apologized to Mr. A, and indicated that they would provide Constable B with guidance in respect of that conduct. I agree that the use of such language by Constable B was unprofessional, but I am satisfied with the steps taken by the RCMP.

Public Complaint and Statutory Investigation

While conducting this review, a number of issues arose with respect to the public complaint and statutory investigation, specifically with respect to the manner in which the investigation was called and the associated appearance of bias; and the timeliness of the investigation and reporting to the complainant.

1) Calling of the Investigation and Appearance of Bias

My review of the record raised concerns with respect to the formalizing of the public complaint and the calling of the statutory investigation.

On March 13th or 14th, Mr. A contacted the RCMP and spoke with a Corporal M. Mr. A called to report an assault on him by a number of police officers on March 11, 2006. The call was recorded and the audio and transcript were provided to the Commission. The two main concerns raised with this call were a) the appearance of bias, and b) the failure to take timely action with respect to the call.

In terms of the appearance of bias, there were a number of statements made during Corporal M's conversation with Mr. A that suggest that his allegations were not being taken seriously and that without any investigation, the RCMP had decided that his allegations were untrue. The conversation started as follows:

Mr. A: Oh, hi, uh, my name's A. I, I want to uh, report uh, a charge on uh, police.
Cpl. M: (Indecipherable).
Mr. A: An RCMP ...
Cpl. M: Oh.
Mr. A: ...Officer beat me up on last Saturday morning.
Cpl. M: They beat you up?
Mr. A: Yeah five of them.
[...]
Cpl. M: Is that right?
Mr. A: You won't believe it huh?
Cpl. M: No, I don't believe it.

Corporal M then invites Mr. A to tell him a little bit about what happened and indicates that he can look to see what the file says. Then, after hearing a summary of the incident:

Cpl. M: The police were yelling Chinese faggot?
Mr. A: Yeah.
[...]
Cpl. M: Hm. Okay, well that's different.
Mr. A: (indecipherable) right.
Cpl. M: I haven't hear [sic] that one before.

After discussing further details, Corporal M stated: "Now were you drunk by any chance cause this seems really unusual that, like what I'm, what I'm wondering if maybe you were mistaken about [getting beaten with] the asp baton."

Nearing the end of the conversation, there is some discussion about what Mr. A wants to see happen from his call, although there is little resolution. Corporal M tells Mr. A that he will look and see what the file says, and tells him: "If I can find a file then uh, we'll give you a call back." He further indicates that Mr. A is talking to the wrong person to complain about the police because he does not investigate those complaints, but he will figure out who does. Mr. A then clarifies that he is not looking to complain, he wants the officers charged. Corporal M proceeds to tell Mr. A that if he wants to charge the officers, he can do it himself by laying a private information. Mr. A appears confused by Corporal M's apparent indication that the RCMP will not take any action and asks: "The RCMP beat people up then, we, we cannot put a charge on it?" Corporal M again tells him that he can lay a private information and suggests he call Crown counsel who could guide him a little better.

Several minutes later, the following exchange took place:

Mr. A: Yeah. Will be very interesting, them, uh, you, you raise apart uh, what type of officer you have right now uh, in the "(name)" section.
Cpl. M: Well you know I, I don't, I don't think that five people would beat you with a baton, but ...
Mr. A: No, no, no, I said one people beat me with baton.
Cpl. M: Oh, one did now?
Mr. A: But five, five people charging on me.
Cpl. M: Oh, okay well ...
Mr. A: Okay?
Cpl. M: ...yeah, that's definitely a little bit different but yeah, what can I say. I wasn't there to witness it but ...
Mr. A: Yeah.
Cpl. M: ...it, it would surprise me immensely to have ...

Not surprisingly, Mr. A then stated: "[B]ut I, I don't think you would do anything because you, you guys in the same (indecipherable)." Corporal M then informs Mr. A that that is not how it works, and that he can file a complaint through the Commission. Mr. A tells Mr. M that he already has,⁷ but he wants to file a charge. The call was then ended with no indication that the RCMP will be looking into the allegations.

In my view, this conversation sent a clear message to Mr. A that the RCMP would not be taking any action with respect to his call, and that it was already decided that there was no merit to his allegations of assault. It is not only the words that were spoken that concern me, but also the negative and sometimes sarcastic tone in which they were said.

In my view, the conduct of the call fell far short of what is to be expected of an RCMP member. The RCMP Act states that it is the duty of members:

[...] to perform all duties that are assigned to peace officers in relation to the preservation of the peace, the prevention of crime and of offences against the laws of Canada and the laws in force in any province in which they may be employed, and the apprehension of criminals and offenders and others who may be lawfully taken into custody [...].⁸

It is incumbent on every member "to perform the member's duties promptly, impartially and diligently, in accordance with the law and without abusing the member's authority."⁹

The RCMP has a responsibility to commence an investigation where there is credible suspicion of wrongdoing. If Corporal M looked at Mr. A's file, he would have seen that an arrest had taken place, that force was used in that arrest, and that Mr. A had suffered injuries. That, along with Mr. A's allegations, created a credible suspicion of wrongdoing.

In my view, it was improper for the member to insist during the call that if Mr. A wished to seek assault charges, he would need to go the private information route. A member of the public is not required to conduct their own investigation and lay their own charges. While a member of the public who is not satisfied with a decision made by a member (or Crown counsel) not to lay charges has the option of proceeding with a private information, it does not relieve the RCMP from its obligation to investigate in the first instance.

Ultimately, a public complaint and statutory investigation was commenced in response to Mr. A's allegations. However, the RCMP did not decide how to proceed until many weeks after the incident and after various conversations with members of the media. The rough notes of Corporal N (one of the investigators assigned to the matter), and other documentation provided by the RCMP, indicate that the following steps were taken to initiate an investigation:

• March 11, 2006 Incident occurs in the early morning hours.
• March 11, 2006 In the evening, RCMP receives a call from a social worker at the hospital, calling on behalf of Mr. A, asking that a member attend to photograph his injuries. The detachment was extremely busy, and advised that Mr. A could attend the office on Monday morning if he wished to lodge a complaint.
• March 14, 2006 Allegations of assault reported by Mr. A to the RCMP.
• March 15, 2006 Staff Sergeant O reports to Superintendent Gates that Mr. A called and wanted police to be charged for assault. He indicated that he would contact Mr. A to determine if he is willing to provide a statement.
• March 22, 2006 Communications sent to the media indicating that an internal investigation is underway.
• March 23, 2006 Clarification sent to media indicating that the detachment has made significant attempts to speak with Mr. A, that he decided not to speak with their senior investigators,¹⁰ and that they have not started an internal investigation.
• March 23, 2006 Superintendent Gates orders administrative review of operations file to determine if an internal investigation may be necessary.
• March 30, 2006 Statement taken from Mr. A by Staff Sergeant O.
• April 4, 2006 RCMP file is opened (06-40245).
• April 27, 2006 According to an e-mail authored by the Officer in Charge of the Surrey RCMP Detachment, the RCMP was still not in a position to identify what their investigational response was to Mr. A's allegations, i.e. whether they would conduct a public complaint, code of conduct, or statutory investigation.
• May 17, 2006 Internal Affairs Unit takes over the file.
• May 31, 2006 Mr. A endorses the public complaint allegations as set out on the RCMP's form 4110e, and a full investigation begins.

While I do not believe that the investigation that was ultimately conducted was biased, there was certainly an appearance of bias in the RCMP's conduct toward Mr. A when he first reported the incident. I also find that the RCMP failed to take timely action to investigate his allegations.

My review of the documentation raises a concern that the start of the investigation may have been prompted more by calls from the media than the initial report made by Mr. A. Superintendent P expressed his concern about the lack of direction of the investigation in an e-mail dated April 27, 2006, which in part stated:

Mr. A has, very publicly, made some very serious allegations regarding the conduct of our members. The very public nature of these allegations creates public expectation regarding response and accountability. At this point, several weeks since the incident, we are still not in a position to identify what is our investigational response (i.e. Part VII, CofC, Stat.). I note your comments regarding Mr. A's seeming interest in an "assault" investigation (stat.). However, if we commence a stat., by default, we have a Part VII and a Code of Conduct – whether he will sign off or not. However, perhaps Mr. A will be more inclined to sign off on the complaint form if it is explained to him that one investigation is not mutually exclusive to the other. This will allow him to access a process that provides him with regular update letters, a final letter of disposition and finally, recourse through the CPC should he not be satisfied with the investigation.

Regardless of the seeming difficulty in dealing with Mr. A, we need to be able to demonstrate clearly that we have been objective and done everything reasonable to facilitate the receipt of his complaint.

Subsequent to this e-mail, a decision was made to prepare a public complaint form and to have the Internal Affairs Unit formalize the paper work, which was done on May 31, 2006. I find that the nearly three months it took to confirm the type of investigation that was to take place was unreasonable.

2) Timeliness

Another area of concern regarding the investigation is the amount of time it took to complete the investigation once it began. In my recent Final Report entitled Police Investigating Police (August 2009), I set out a baseline definition of what constitutes a "timely" response by the investigative team. The key features of appropriate timeliness of member investigations include the following:

1. Member investigation undertaken and completed in six months (or less).
2. Investigations, if possible, should not exceed one year.
3. Immediate dispatch of necessary personnel where timely response required.

Those guidelines were clearly not met in Mr. A's case. It took more than three years from the time that Mr. A first reported the incident to the time the RCMP's Final Report was issued. When an investigation of an RCMP member takes longer than one year to complete, these subject members could be excluded from any Code of Conduct (section 43(8) of the RCMP Act) action that may follow. In addition, should the one-year limitation period lapse, members could also be precluded from being charged under some offences of the Criminal Code. This requires that particular attention be paid to ensure the timeliness of these investigations.

The record shows that Staff Sergeant O began some type of investigation into the incident in March 2006 (although, as noted above, the type of investigation had yet to be defined), but that it was transferred to the Internal Affairs Unit and assigned to Corporal Q on or about May 17, 2006. An e-mail from Sergeant R to Corporal Q asks that he make his "best effort" to have the investigation completed within four weeks. However, he did not submit a report on his investigation until November 2006.

Sergeant R was apparently not satisfied with Corporal Q's investigation and assigned the matter to Corporal N in January 2007. She conducted additional witness interviews and obtained additional documentation on the matter, including reports from the ambulance attendants. She completed her report and submitted it for review on or about August 16, 2007.

In the record, there was a letter dated June 5, 2008, from Sergeant R to the Officer In Charge, advising that Corporal N's investigation report is "very comprehensive and complete" and supporting the findings made in that report. Corporal N's findings and conclusions with respect to Mr. A's complaints were identical in substance to the RCMP's Final Report; however, the Commission was unable to locate an explanation for the 22-month delay in the RCMP sharing the results of its investigation with the complainant. I find that the delay was highly inappropriate in the circumstances. Apologizing to Mr. A for the lengthy delay does little to build confidence in the RCMP's ability to investigate such matters. (I note that the Commission commented on a similar delay in the RCMP's response to another complaint, filed by Mr. A in 2004 and not disposed of by the RCMP until nearly four years later.¹¹)

Finding: The investigation of Mr. A's complaint was not conducted in a timely manner.

Recommendation: That the Commissioner provide guidance to the Officer in Charge at the Surrey RCMP Detachment with respect to the importance of ensuring that both criminal investigations of members and public complaints are disposed of in a timely fashion in the future.

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

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1 Subsection 129(a) of the Criminal Code of Canada.

2 R. v. Lavin (1992), 76 C.C.C. (3d) 279 (Que.C.A.) at p. 282.

3 R. v. Lavin, ibid at p. 282. See also Chief Justice Dixon's dissent in R. v. Moore, [1979] 1 S.C.R. 195 enunciating the general principle regarding self-identification to a police officer.

4 See subsection 495(2) of the Criminal Code.

5 There are two other limitations on the power to arrest without a warrant related to the need to secure or preserve evidence of or relating to the offence and to prevent the continuation or repetition of the offence or the commission of another offence.

6 See, for example, R. v. Bottrell, [1981] B.C.J. No. 855 (B.C.C.A.) at para. 16; and R. v. Nasogaluak, [2007] A.J. No. 1217 (Alta. C.A.) at para. 22.

7 This assertion was mistaken, as Mr. A had contacted the Commission but had not yet filed an official complaint. Ultimately, his complaint was done through the RCMP, as indicated in this report.

8 See subsection 18(a).

9 See subsection 37(c).

10 The documents disclosed by the RCMP did not reveal any of these attempts.

11 CPC file No. 2004-0408.