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

RCMP Act Paragraph 45.42(3)(a)

Vetted version for posting

April 19, 2007

Overview

On July 9, 2006, Constable A of the Richmond RCMP Detachment in British Columbia responded to a call from the complainant's sister who had been in a traffic accident at a local mall. When Constable A arrived, he found that the complainant's sister, who had been driving members of her family, and the driver of the other vehicle, Mr. B, had not provided each other with their driving particulars. He facilitated the transfer of particulars but refused to investigate the accident because it was a minor incident that should be reported to the Insurance Corporation of British Columbia.

After Constable A refused to investigate the traffic accident, the complainant's sister also reported that Mr. B had struck her mother. Constable A conducted a brief investigation, which he terminated because he did not believe the complainant's sister's story.

On July 12, 2006, the complainant filed a complaint with the Commission alleging that Constable A was dismissive of the complainant's family, failed to investigate the alleged assault and exhibited racist behaviour.

As required by the RCMP Act,^[1] the complaint was forwarded to the RCMP for investigation. Following its investigation, the RCMP provided the complainant with a letter of disposition dated August 31, 2006, which did not support the complainant's allegations.

The complainant was not satisfied with the results of the RCMP's investigation. On November 22, 2006, he requested a review by the Commission. The Commission received the materials relating to this file on January 11, 2007.

For the reasons outlined below, the evidence leads me to conclude that Constable A was neither dismissive of the complainant's family nor did he exhibit racist behaviour. However, I find that he conducted an inadequate investigation into the alleged assault.

Commission's Review of the Complaint

My findings are based on a careful examination of the complaint, the RCMP's letter of disposition and public complaint investigation, as well as other relevant material.

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

First Allegation: Constable A was dismissive of the complainant's family.

On July 9, 2006, Constable A responded to a call about a minor motor vehicle accident, which occurred when two vehicles attempted to enter the same parking space in a mall parking lot. He first spoke with a loss prevention officer from the mall who had obtained particulars of the accident and who advised Constable A that each party blamed the other. In his statement to the public complaint investigator the loss prevention officer advised that when he first arrived the complainant's sister had called the police because Mr. B "was not providing information to her regarding the accident." It appears that he succeeded in obtaining the parties' particulars, as he reported this to Constable A upon his arrival.

Constable A then spoke with Mr. B and after that the complainant's sister. As this was a minor accident Constable  A ensured that the drivers exchanged relevant information. The complainant's sister was insistent that Mr. B was responsible for the accident and wanted an investigation of the collision. According to Constable A's occurrence report, he "explained to [the complainant's sister] that the Police were not there to determine fault [...]." He then went on to explain that both drivers needed to contact the Insurance Corporation of British Columbia. This information is consistent with that found in the complaint.

It should be noted that the Motor Vehicle Act^[2] does not require the reporting of an accident with less than $1,000 damage or where the accident did not occur on or adjacent to a highway. It appears from the descriptions of the damage, which occurred in a parking lot, that it was of a very minor nature and that neither Constable A nor the loss prevention officer from the mall believed that it required police attendance and should merely have been reported to the Insurance Corporation of British Columbia. I accept that it was in this context that Constable A explained that he was merely there to facilitate the exchange of information between the drivers. Although the complainant alleged that Constable A had said that he did not have time to waste on such matters, I find that even if these words were spoken they would have been explanatory of the member's duties and that all other aspects of the evidence demonstrated an appropriate response to the accident report.

Finding: Constable A was not dismissive of the complainant's family.

Second Allegation: Constable  A failed to investigate the alleged assault.

Constable A's occurrence report noted that the complainant's sister was agitated before he even spoke to her. When he finished speaking with Mr. B and approached the complainant's sister he had to ask her to quiet down as he described her as shouting and being insistent that Mr. B was at fault. His response, as set forth above, satisfied his duty in relation to the accident report. However, during this exchange the complainant's sister alleged that Mr. B had struck her mother. It is Constable A's response to this charge that forms the substance of this allegation.

Constable A recorded the following exchange in the occurrence report,

[The complainant's sister] became increasingly upset and continued shouting. [The complainant's sister] then said that [the other driver, Mr. B] was swearing at her saying, "[expletive] my mother." Cst [A] said he did not believe this was true as no one ([the complainant's sister], [the other driver, Mr. B], [the loss prevention officer from the mall], other witnesses) had mentioned this previous [sic]. [The complainant's sister] then stepped forward into Cst[A]'s space and said, "He then punched my mother, like this!"

[The complainant's sister] extended her right arm, and with a closed fist, punched Cst[A] in the left shoulder. Cst[A] grabbed [the complainant's sister's] hand and gave her the following caution, "Don't you ever, ever, touch a Police Officer again, or you will go to jail." [The complainant's sister] appeared to be trying to escalate the situation as she was not satisfied that no further investigation was to be done by the Police. Cst[A] did not arrest [the complainant's sister] at this time.

[The complainant's sister] apologised. Cst[A] asked if any of what [the complainant's sister] said happened, [the complainant's sister] was silent. Cst[A] believed [the complainant's sister] was not being totally honest in her recall of the event.

Cst[A] questioned [the other driver, Mr. B] as to if he punched anyone. [Mr. B] denied. No signs of injury on [the complainant's sister] or her family at scene.

From the outset of the exchange, Constable A found the complainant's sister's rendition of events to be suspect. He explained why he believed neither the complainant's sister's allegation that the other driver, Mr. B, swore at her mother nor her allegation that he assaulted her mother. According to the occurrence report he did not see any signs of injury on any of the complainant's family members and when he asked Mr. B if he had hit anyone the latter denied it. This was the extent of the investigation.

Constable A's observation of the lack of any readily observable injuries to the complainant's family was a relevant consideration in an assault causing bodily harm investigation but was not an element of a common assault. Constable A's reliance on these observations was erroneous as the assault could have occurred as a result of unwanted physical contact absent any injury. This speaks to a predisposition and lack of objectivity on Constable A's part.

More importantly, there were witnesses present who were not questioned, including the alleged victim of the assault. This is referred to in a continuation report prepared by the public complaint investigator who had a discussion with Constable A regarding the incident. She recorded that none of the other witnesses came forward to speak with Constable A. However, it was Constable A who had a duty to investigate and the factors that he took into account before terminating his "preliminary investigation" were presumptive and readily checked by speaking with others in attendance.

The public complaint investigation was of limited assistance in assessing this allegation. As mentioned above, the investigator had a discussion with Constable A and prepared a continuation report based on that discussion but did not obtain a formal statement. Furthermore, the relevant material does not reveal that she made any effort to obtain statements from the complainant's family.^[3] Instead, it appears that the public complaint investigation sought to determine whether independent witnesses could verify the complainant's sister's allegation of assault.

The thrust of the investigation into this allegation should have been on whether Constable A conducted an adequate investigation. The fact that the complainant's sister complained that her mother had been assaulted is not in dispute. With this in mind the public complaint investigator should have assessed whether the actions of Constable A were appropriate in the circumstances. However, it appears that the investigator instead undertook to determine if his conclusion was correct.

As a result, none of the other complainant's family members were ever interviewed. The investigation found that neither the loss prevention officer from the mall nor a witness to the accident, who had left prior to the arrival of Constable A, witnessed an assault. I also note that the witness indicated that she left the scene shortly after the accident and that the loss prevention officer from the mall did not arrive until he was later advised of the accident. In other words this does not establish that the assault did not occur.

The public complaint investigation report indicated that an investigator for the Insurance Corporation of British Columbia was contacted and after reviewing the witness statements advised that the other driver, Mr. B,^[4] reported that the parties swore at each other, but there was no reference to an assault. A cautionary note should be taken with regards to these statements, as strictly speaking the alleged shove was not relevant to the determination of fault being undertaken by the Insurance Corporation of British Columbia. Furthermore, it might support the complainant's sister's allegation about the language used by the other driver, Mr. B, which was the first statement where Constable A questioned her truthfulness. The witness' statement confirmed a heated verbal exchange in which both parties yelled profanities and indicated that Mr. B was abusive, in Chinese, and used language that she would not repeat, to both the complainant's family and herself, even though she was merely a witness to the accident.

Lastly, in relation to Constable A's rationale for suspecting that the complainant's sister was trying to escalate the situation because she was not satisfied that a traffic investigation was not being undertaken, I note that she reportedly complained of the alleged attack on her mother to the loss prevention officer from the mall prior to Constable A's arrival and it was the loss prevention officer who had suggested that she notify the police when they arrived.

This is not to say that an assault occurred. The question to be answered is whether Constable A conducted an adequate investigation. I find that he did commence an investigation, however abbreviated. I find that he summarily discounted the complainant's sister's claims based upon a rationale that may well have been erroneous as can be seen from information that was not available to Constable A at the time. Nonetheless, I cannot accept that it is appropriate investigative practice to terminate an investigation without questioning the alleged victim of an assault or the other family members who were witnesses, especially when the incident complained of is fresh and the witnesses readily available.

Much was made of the desire to obtain independent witnesses to the incident during the public complaint investigation, but that approach was also flawed. If anything it left the perception that the evidence of the complainant's family, which was never sought, was irrelevant. The simplest and safest approach would have been to conduct interviews. In the end Constable A may still have determined that no charges were warranted, but this conclusion would not be subject to the allegation that he summarily and without proper foundation believed the complainant's sister to lack credibility.

Finding: Constable A conducted an inadequate investigation into the alleged assault.

Recommendation: That Constable A receive operational guidance on the importance of conducting investigations in an objective manner and avoiding drawing presumptive conclusions.

Third Allegation: Constable A exhibited racist behaviour during his interaction with the complainant's family.

The above-described interactions are all the evidence that would be used to assess the merits of complainant's claim of racism. This is a representation of his perception of the interactions of Constable  A toward him and his family who, unlike Constable A and the driver of the other vehicle, were Asian and not Caucasian. I find no evidence in the relevant material that would lead me to believe that Constable A displayed any racist behaviour and agree with the findings of the letter of disposition in this regard. I also note that when questioned about whether Constable A made any discriminatory comments, the loss prevention officer from the mall responded with a definitive no.

Finding: Constable A did not exhibit racist behaviour in his dealings with the complainant's family.

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

[2] [RSBC] c. 318, s. 67.

[3] In PC-2005-1350 the Commissioner stated, "It is my position that, at a minimum, and in the absence of exceptional circumstances, a public complaint investigation should involve an interview of the complainant(s) and subject member(s)."

[4] The reference to the Insurance Corporation of British Columbia is only found in the public complaint investigation report and there are no separate records in the relevant material available to assess the comprehensiveness of the material apparently relayed by telephone. Furthermore, the complainant's sister indicated that she had the contact information for another witness of the accident who was never interviewed by the police.