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

RCMP Act Paragraph 45.42(3)(a)

Vetted version for posting

Febuary 5, 2009

Overview

On February 29, 2008, Mr. A was arrested at his home pursuant to an unendorsed warrant and his firearms were seized. The warrant was based on a charge¹ laid after an investigation undertaken by Constable B in response to a complaint made by Mr. and Mrs. C of being followed, videotaped and harassed by Mr. A. Constable D and several other officers assisted Constable B in the arrest. Mr. A denies the allegations and claims that the F's are stalking him as part of an organization of community volunteers who patrol designated areas to observe any possible criminal activity, who he believes are out to get him.

On March 11, 2008, Mr. A complained to the Commission for Public Complaints Against the RCMP (the Commission) about the conduct of Constable B. In his complaint, he alleged that Constable B failed to conduct an adequate investigation prior to arresting him, failed to provide him with adequate medical care while he was in police custody, and held him in custody longer than was necessary.

On June 16, 2008 Mr. A complained to the Commission about the conduct of Constable D. In his complaint, which was amended on July 29, 2008, he alleges that Constable D improperly used his handcuffs by handcuffing Mr. A behind his back despite having been told about pre-existing injuries to Mr. A's shoulder, which caused him further pain and injury.

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. In this case, the RCMP provided the complainant with a Final Report dated September 12, 2008, which did not support the allegations.

Mr. A was not satisfied with the RCMP's handling of the complaint, and on October 14, 2008, he asked the Commission to review the matter. The Commission received the investigation documents from the RCMP on January 9, 2009.

For the reasons outlined below, I have concluded that the RCMP did not provide Mr. A with adequate medical care while he was in police custody. With respect to the remaining allegations, I am satisfied with the RCMP's disposition.

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 letter of complaint and accompanying documentation, the RCMP's public complaint investigation file, the occurrence and continuation reports related to complaints made to the RCMP both by Mr. A and by other individuals about Mr. A, the statements of Mr. and Mrs. C, the Report to Crown Counsel, various court documents, and the Guard Log Book, as well as other relevant documentation.

First Allegation: Constable B neglected her duty by failing to conduct an adequate investigation prior to arresting Mr. A on February 29, 2008.

Mr. A alleges that Constable B did not conduct an adequate investigation prior to arresting him pursuant to a complaint made by Mr. and Mrs. C, who apparently feared that he may cause them personal injury. Mr. A claims that he was not stalking or harassing Mr. and Mrs. C in any way, but rather that they were stalking him as members of the organization that patrols the neighbourhood, who he believes are out to get him.

The RCMP file provides a well-documented history of complaints against Mr. A for aggressive behaviour. Those complaints were made by various individuals, some who knew Mr. A and others who did not. The RCMP file shows that Mr. A has a tendency to approach individuals in public places and accuse them of harassing or stalking him, and of being associated with the organization that patrols the neighbourhood. In some instances, he has reportedly physically assaulted them. Specifically with respect to Mr. and Mrs. C, Mr. A was warned that if his behaviour persisted, it could result in charges. Such warnings were given to Mr. A on January 4 and 16, 2008. On February 18 and February 28, the F's reported additional incidents to Constable B and made a formal statement. The reported incidents included following, videotaping, and verbal altercations. Mr. A had also casually mentioned to them that he had obtained his Firearms Acquisition Certificate. Mr. and Mrs. C became fearful for their safety and felt that the situation was escalating.

Constable B prepared and submitted a Report to Crown Counsel, detailing the history and current incidents reported by Mr. and Mrs. C. Prior to submitting the Report to Crown Counsel, Constable B spoke with Mr. A's son. It was apparent to the RCMP that Mr. A's reported behaviour may be the result of mental health issues. The report notes that Mr. A was "unaware of the police investigation to prevent escalation of his behaviour towards Mr. and Mrs. C and that "numerous attempts were made by police to warn [Mr. A], rather than seek criminal charges, however, these efforts have largely failed." A request was made for an unendorsed warrant to arrest Mr. A, to seize his firearms, and for a prohibition order. The British Columbia Provincial Court issued a warrant for Mr. A's arrest on February 29, 2008. Constables B and D executed the warrant.

Analysis

When reviewing complaints concerning inadequate criminal investigations, it is important to consider the steps taken during the investigation. RCMP policy requires that members "will, subject to available resources, priorities and exercise of appropriate discretion, conduct a Criminal Code investigation."² RCMP members must follow all leads, and avail themselves of additional resources where required. Obviously, there are limits to the extent of the investigation and this depends on the nature of the offence. The main objective of a criminal investigation is to gather enough information to be able to form reasonable grounds to believe that certain persons committed an offence.

In my view, Constable B conducted an adequate investigation of the allegations made by Mr. and Mrs. C. Their allegations were supported by the substantial history of complaints against Mr. A. Constable B was aware of Mr. A's position with respect to the allegations, as he had been visited by the RCMP on several occasions and warned about his behaviour. The reports clearly indicate that Mr. A took the position that he was the one being stalked. As noted in the Commission's report issued with respect to Mr. A's complaint about Corporal E, it is apparent that Mr. A truly believes that there are persons who are following and stalking him. However, that belief appears to be without any factual basis. Mr. A has accused complete strangers who are in no way associated with the organization that patrols the neighbourhood of following him. He does not believe them when they tell him that they are not members of the organization. He has tended to respond in an aggressive manner, sometimes attempting to or actually physically assaulting them.

In my view, Constable B had sufficient information to form reasonable grounds that Mr. A committed the offence he was charged with.

Finding: Constable B's investigation of the allegations against Mr. A was proper and adequate in the circumstances.

Second Allegation: The RCMP failed to provide adequate medical care to Mr. A while he was in custody at the RCMP Detachment.

Mr. A alleges that when he was first lodged in cells at approximately 8 p.m. on February 29, 2008, Constable  B told him that she was going to get his prescriptions. He did not see her again that evening and did not get his medications until the next day at noon. At approximately 10 p.m. that evening, he started having symptoms of a heart attack. In his letter of complaint, he states that he knocked on his door and repeatedly stated out loud that he had chest pain. A guard came by the door, called him an asshole and left. In his request for review, he states that he banged on the door for a couple of hours but received no response. He also tried kicking the door. He could hear them laugh, but they would not answer. He believes that the officers were punishing him. He states that he was supposed to have his pills at 9 p.m. that night.

Mr. A states that a guard came to offer him breakfast at approximately 6:30 a.m. on Saturday, March 1. Mr. A told him that he had had a heart attack and that he needed his medication. The guard told him that Constable B was in and that she would bring the medicine. An hour and a half later he asked again and was told she was coming. At approximately 11 a.m. he saw some slippers go by the door. He told the person that he had a heart problem and that he needed his medicine. She indicated that she would tell the front desk. At noon he got his medication.

Mr. A further states that on Sunday morning he asked the guard to get the doctor because he was dizzy. He states that he was checked by a doctor and was asked if he wanted to go to the EMR in Nanaimo. He told them no because he believed that if he missed court on Monday morning he would be put back in jail upon his release from the EMR.

The RCMP file confirms that Mr. A's wife gave Constable B four medications for Mr. A. The medications were noted as part of Mr. A's personal effects when he was brought to the detachment. They were identified as: Metformin, Citalopram, Glyburide, and Ramipril. There are no notations on the form as to the dosages required for each medication. The Guard Log Book indicates the following dates, times, and medications given to Mr. A:

In summary, the log shows that Mr. A was not given medication on the night he was first lodged in cells; on March 1, he was given medication in the morning and at night; on March 2, he was given medication in the morning but not at night; on March 3, he was given medication in the morning and was released shortly thereafter. The log does not note what dosages were prescribed by Mr. A's medical doctor.

The log notes that on Sunday, March 2, 2008 at 11:07 a.m., emergency health services attended and checked out three prisoners, including Mr. A.

Analysis

Every officer has a responsibility to ensure that those in their custody are provided the medical care required. RCMP policy provides that if a prisoner requires prescribed medication, the member must permit him/her to take the dosage prescribed by a medical practitioner. The dosage and the time it is administered is to be recorded in the prisoner's log, as well as on a separate form.³ It is not disputed that Mr. A required medication, and that the medication was given to the RCMP officers who arrested him. The question is whether or not Mr. A's medication was properly administered while he was held in custody.

It is important to note that there was nothing in the RCMP file or the public complaint investigation file to indicate what dosage of each medication was required, and at what time intervals. At the very least, that information should have been obtained during the investigation into the complaint. While Mr. A may be confused about the time he was first given his medication on the morning of March 1, 2008, he specifically complains that he asked for but did not receive his medication on the night of February 29 and the RCMP file confirms same. What is lacking in the investigation file is some basis on which to conclude whether or not Mr. A should have been given medication that night, particularly since he was given medication on at least one other night while he was held in custody. On the information before me, I am not able to determine whether or not the RCMP failed to provide Mr. A with the required medication on the night of February 29.

I find it particularly puzzling that after reviewing the times and types of medications given to Mr. A, as noted in the log and set out above, the RCMP investigator's report concludes that "Mr. A was provided medication on a consistent basis." In my view, it is impossible to conclude from the Guard Log Book that Mr. A was provided medication on a consistent basis. He was neither given medication at regular intervals on each day nor was he given the same medication on each day. For example, accordingly to the log, he was given medication in the morning and at night on March 1 but only given medication in the morning on March 2. On the morning of March 1 he was given four medications; on the morning of March 2 he was given only one medication. Mr. A clearly had serious medical conditions that required medication, and the RCMP had a duty to ensure that he received the proper dosages while he was in their care. In my view, there was no consistency in the administering of Mr. A's medication and in that regard I find it more probable than not that he did not receive adequate medical care.

Mr. A acknowledges that when he asked to see a doctor on March 2, 2008, they checked him and asked him if he wanted to go to the EMR in Nanaimo. He apparently declined because he was afraid that he would be returned to jail if he did not make it to court on Monday morning. There is no evidence of any impropriety on the part of the RCMP with respect to this aspect of his medical care.

Finding: The RCMP failed to provide Mr. A with adequate medical care.

Third Allegation: Constable B kept Mr. A in custody longer than was necessary.

There is no dispute that Mr. A was taken into custody in the evening of February 29, 2008, and remained in custody until the morning of March 3, 2008.

Mr. A acknowledges that he spoke to a justice of the peace on Saturday, March 1, 2008. However, he states that while he was told that he would be released immediately if he made a deposition on the phone, he stated that he would not do so, as he "smelled the rotten fish." Consequently, he was told that he must stay in jail until Monday. He states that a man standing by him during the conference call told him by a head movement "do not do it. Wait until Monday."

The Guard Log Book indicates that Mr. A was taken out of his cell to speak with a legal aid lawyer before appearing before the justice of the peace by telephone. The court documents show that on March 1, 2008, Mr. A was ordered into custody by the British Columbia Provincial Court until his court appearance on March 3, 2008.

Analysis

In the evening of February 29, 2008, Mr. A was arrested by the RCMP on an unendorsed warrant, which meant that the RCMP could not release him until he was brought before the provincial court. An officer who arrests a person with or without a warrant must take the arrested person before a justice of the peace without unreasonable delay.⁴ Mr. A appeared before a justice of the peace by telephone the following morning at approximately 10:30 a.m. In my view, that met the requirement.

Mr. A had the opportunity to speak with legal counsel prior to the telephone call with the justice of the peace and chose to proceed as he did. It is clear that Mr. A was suspicious of the process without any apparent basis, as indicated by his statement that he "smelled the rotten fish," and I find it implausible that anyone in the room told him by a head movement to proceed as he did. Mr. A was remanded into custody by the Court until March 3, 2008, on which date he was released.

The record clearly shows that the RCMP arrested Mr. A and held him in custody pursuant to an unendorsed warrant, and subsequently by an order of the Court. Therefore, I find that the RCMP did not hold Mr. A in custody longer than necessary but rather detained him for the period required by the Court.

Finding: The RCMP did not hold Mr. A in custody longer than necessary.

Fourth Allegation: Constable D improperly used his handcuffs by handcuffing Mr. A behind his back and hurting his shoulder.

Mr. A alleges that when he was arrested on February 29, 2008, an officer later identified as Constable D forced his right arm behind his back and damaged his shoulder. It was very painful. Mr. A states that he had told Constable D that he could not put his arms behind his back due to two surgeries and restricted movement in his right shoulder; he showed him the scars. Constable D ignored him and handcuffed him behind his back. Mr. A felt excruciating pain as he sat in the police car. In his original complaint, Mr. A states that he told a second officer, who was the driver, to relocate the cuffs to the front of him. He did so, but the damage was done. In his request for review, he indicates that Constable D relocated the handcuffs to the front of him. He states that now he cannot sleep on his right side because of the damage to his shoulder.

Constable D states that he attended Mr. A's residence to assist Constable B with the arrest. He indicates that Mr. A had shown a propensity for violence against persons in the past, and has admitted to the police that he had assaulted other individuals (although those individuals have not sought charges). Constable D advised Mr. A that there was a warrant for his arrest and handcuffed him with his hands behind his back. Constable B spoke to him about the warrant and asked him about the firearms he owned. After locating and seizing the firearms without incident, Constable D took Mr. A to the police vehicle and put him inside. At that point, Mr. A mentioned that he had a sore shoulder that was being aggravated by the pull of the handcuffs behind his back. Constable B approved the moving of his handcuffs to the front. Constable D indicated that at all times while he was present with Mr. A, there were no altercations and everyone was civil and polite to each other.

Constable D states that due to his training and experience, and Mr. A's known history, Mr. A was initially handcuffed behind the back in accordance with standard practice, RCMP training, and the Incident Management/Intervention Model. Once the initial assessment is completed and the member deems the situation under control and the person is of a lower risk to the member or the public, then the handcuffs may be moved to the front. That is what he did in this instance.

Analysis

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 is based on the principle that the best strategy employs the least intervention necessary to manage risk. The IM/IM requires a police officer to carefully assess the risk and behaviour of the suspect to properly intervene. Regarding the usage of handcuffs, the RCMP Operational Manual provides that a police officer may restrain a violent person using RCMP-approved restraints,⁵ such as handcuffs. Handcuffs are considered a soft empty hand control technique.

Mr. A appears confused in his recollection of his arrest and handcuffing. In his letter of complaint, he identifies a second officer, the driver of the vehicle, as the person who moved the handcuffs to the front of him when asked. However, there was apparently no second officer at Mr. A's residence on the evening of his arrest who handcuffed him. Mr. A then identifies Constable D in his request for review as the person who moved his handcuffs, and Constable D confirmed in his statement that he is the one who moved the handcuffs. Due to the inconsistencies in Mr. A's statement, I find the statement of Constable D to be more reliable on this matter. I accept Constable D's statement that Mr. A did not complain about the placement of the handcuffs until he was placed in the police vehicle, at which time Constable D reassessed the risks and moved the handcuffs to the front of Mr. A.

At the time the handcuffs were applied to Mr. A behind his back, Constable D reasonably believed that such use was necessary, given Mr. A's apparent history of physical and verbal aggression, and his admissions of committing assault against various individuals. In my view, Constable D's actions were consistent with RCMP policy and were appropriate.

In addition, I note that there is no medical evidence to support Mr. A's allegation that the handcuffing resulted in injury to his shoulder.

Finding: Constable D did not improperly use his handcuffs on Mr. A.

Sufficiency of the RCMP'S Final Report

Finally, another issue arises that relates to the adequacy of the letter written to Mr. A by the RCMP advising him of the results of the investigation into his complaint. Final Reports must include sufficient detail to give the complainant clear rationale on how the RCMP arrived at its final disposition. Section 45.4 of the RCMP Act requires that a Final Report should set out, in part, a summary of the complaint and the results of the investigation.

It appears from the RCMP's public investigation file that a draft Final Report was prepared that is very different in content (but not in its conclusions) than the one that was ultimately issued to the complainant. The draft contains details of the findings of the investigation, whereas the Final Report contains very little detail. It is important to note that RCMP policy states that "[t]he final letter is easily drawn from the final investigative report because they are similar in format and content."⁶ While the draft letter appears to better conform to RCMP policy, the Final Report clearly did not.

The Final Report does not set out a clear rationale on how the RCMP arrived at its final disposition. RCMP policy provides the following guidance to members for preparing Final Reports:

Give clear rationale and indicate the finding of supported or unsupported or undetermined, or that the investigation was terminated. Be concise, factual and accurate in relating what the evidence is. Where multiple witnesses have been interviewed, the investigator need not fully reiterate what every witness has stated. Where appropriate, summarize the results of the statements as they relate to the specific allegation. Depending on what witnesses say the evidence can be grouped, summarized and commented on. The witness information may conflict or it may be refuted by other independent documentation.⁷

In disposing of the allegation regarding inadequate medical care, the Final Report simply states that Mr. A's wife provided his medications to Constable B and that he was provided medication while he was detained at the detachment; when Mr. A complained of health issues, he was provided access to emergency medical services. The report then concludes that proper medical care was provided. In my view, it is quite a leap to conclude that because a prisoner has been provided with medication and access to emergency medical services at some point in time, he was provided proper medical care. At a minimum there should be an assessment of what medications were provided and when in order to justify a conclusion of proper medical care, as well as an assessment of what complaints were made and when access to emergency medical services was provided. No such assessments were undertaken in the Final Report.

It is also notable that neither the background, summary, nor findings sections give a fuller explanation of Mr. A's allegations or make any reference to what led him to make those allegations. For example, at no point in time does the Final Report specify that Mr. A's concerns about his medical care were specifically with respect to when he was given his medication and when he was seen by medical personnel. The Final Report does not contain any details of Mr. A's position.

In this case, the letter of disposition fails to provide a sufficient summary of Mr. A's complaint and it fails to provide sufficient details of the investigation to support the final position of the RCMP. Therefore, in my view, the letter of disposition failed to meet the standards for writing a letter of disposition required by the RCMP Act and by RCMP policy.

Finding: The RCMP's letter of disposition failed to meet the requirements for writing a response to a public complaint set out in the RCMP Act and in RCMP policy.

Recommendation: I recommend that the Officer in Charge of the RCMP detachment consult the RCMP Act and the RCMP's National Internal Investigation Guidebook to obtain guidance on how to write sufficiently detailed letters in response to public complaints.

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 Mr. A was charged under subsection 810(1) of the Criminal Code, which provides: "An information may be laid before a justice by or on behalf of any person who fears on reasonable grounds that another person will cause personal injury to him or her or to his or her spouse or common-law partner or child or will damage his or her property."

2 RCMP Operational Manual, Criminal Code Offences, Chapter IV.I.C.I.

3 RCMP Operational Manual, Part 19, Section 2, "Assessing Responsiveness/Medical Assistance".

4 See section 503(1)(a) of the Criminal Code.

5 RCMP Operational Manual, Part 17, Chapter 6, "Restraining Devices".

6 RCMP's National Internal Investigation Guidebook, Chapter 16, "Final Letters of Disposition", p. 35.

7 RCMP's National Internal Investigation Guidebook, Chapter 16, "Final Letters of Disposition", p. 36.