Police Investigating Police – Final Public Report

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4. Case File Review – RCMP Investigations Assessed

Before addressing the findings of the RCMP case file review, it is first important to set out the methodology employed to develop the pool of cases from which the CPC's assessment was drawn. This administrative process reveals critical issues in the RCMP's administrative handling and management of its own member investigations. The methodology and key administrative findings are outlined below.

4 (a) Methodology

Stage 1: CPC Selection Criteria

To ensure the CPC established a strong pool of the most relevant RCMP cases for review, a timeframe of April 1, 2002 to March 31, 2007 was selected in the initial laying of the complaint. This timeframe ensured that the most recent files could be reviewed and enhanced the likelihood that the police and civilians involved in each case would be more readily accessible to interview. This task could have proven more difficult had the investigative timeframe been broadened.

Bearing this five-year timeframe in mind, the CPC Review Team proceeded to identify specific selection criteria to determine which cases would be included in the review. As per the parameters of the complaint, the three general categories for review included: (1) Assault Causing Bodily Harm; (2) Sexual Assault; and (3) Death.

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Stage 2: RCMP File Identification

To facilitate the file identification process, the CPC liaised with the RCMP who assisted by identifying a national point of contact from its Community, Contract and Aboriginal Policing Section to manage all CPC-related requests.

The RCMP further provided divisional contacts to facilitate the reviews. And as per the established CPC selection criteria, these divisional contacts (RCMP Criminal Operations Officers in each division) were then asked to identify all files in their respective divisions related to criminal investigations of RCMP members by other RCMP members between April 1, 2002 and March 31, 2007 involving assault causing bodily harm; sexual assault; and death, including death caused by operating a personal motor vehicle (PMV).

Working from the explicit terms of reference and criteria outlined in the Chair-initiated complaint, the CPC and RCMP jointly determined that the best way to identify potential cases for consideration in the investigation was to have the RCMP search their records databases identifying the various sections of the Criminal Code related to charging offences of assault, sexual assault and death.  In so doing, all potential cases could be captured.  However, many divisions unilaterally searched their databases and then made a determination of those cases that fit within the terms of reference.  

Once the cases were identified by the RCMP, they were then sent to the CPC.  The CPC investigators manually looked at each case and made a determination as to whether or not each case fit within the parameters of the investigation.

The RCMP was further instructed to identify all possible files for the CPC Review Team, even cases where relevance was questionable.

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Stage 3: CPC Preliminary Review of RCMP Files

A combined total of approximately 600 RCMP cases were initially identified across the country that fit the timeframe and offence category.

It is critically important to note that access to the data on member investigations could not be retrieved through RCMP National Headquarters due to the lack of centralized tracking or monitoring of this type of information on a national scale. The CPC Review Team was therefore required to work with divisional contacts to get access to the necessary information for the purposes of this report.

Like National Headquarters, most divisions do not track member investigations in a formal way. As such, most divisions generated relevant files for the PIP analysis by searching through divisional records housed at their respective Headquarters using key word searches. Some divisions were better able to narrow the scope of their search to fit the parameters of the review through effective record-keeping processes making for easier retrieval, while other divisions did not have the same capacity. For example, due to record-keeping processes and time constraints, Alberta (K) Division simply provided everything that could possibly fit the parameters of the complaint. This helps to explain the higher number of cases received from K Division relative to the rest of the country.

CPC Finding No. 4: The lack of national and divisional data collection-or monitoring capacity-for member investigations (combined with varied divisional RCMP record-keeping and retrieval methods on this issue) demonstrates a lack of attention being placed on member investigations.

Where a determination needed to be made as to whether an RCMP file was relevant to the parameters of the public interest investigation, the files in question were assessed by the CPC's two investigators assigned the task. Where necessary, the CPC investigators were then deployed to the divisions in question to undertake a file review and make a determination of relevance.

Upon review by the CPC investigators, which in some cases involved travelling to various divisions and individual detachments, approximately 150 RCMP cases were deemed relevant to the parameters of the public interest investigation.

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Stage 4 – CPC Sample Narrowed and Files Retrieved for CPC Review

Recognizing that it would be prohibitive to review all relevant cases in each of the three categories, it was determined at the outset that a smaller, more manageable number of cases would be selected for a full-file review.

This sample size was selected in order to narrow the number of case reviews to a more reasonable amount, thereby allowing for a comprehensive examination of the chosen cases, while respecting that a reasonable length of time would be required for each investigation to be undertaken.

To secure a random sample for review, cases were first categorized by RCMP region/division, and by offence category (assault, sexual assault, death). From this list, a random selection was made to ensure that every RCMP Region and every offence category was represented.

It is important to note, as per the map outlined next, that the RCMP's Central Region was not represented in the random sample because no cases were identified by Quebec (C) Division; Ontario (O) Division; and HQ National Capital Region (A) Division that fit the parameters of the Chair-initiated complaint. Furthermore, no files were identified by Nova Scotia (H) Division, and Prince Edward Island (L) Division. And while a small number of files were initially identified by the RCMP for New Brunswick (J) Division and Yukon Territory (M) Division, these files did not meet the criteria set out in the Chair-initiated complaint and were therefore excluded. Of concern to the CPC is the absence of any cases identified by the bulk of the Maritimes, given the policing role (all levels of policing) undertaken in Nova Scotia (H) Division, New Brunswick (J) Division, and Prince Edward Island (L) Division, in particular.

Number of RCMP Cases Examined by Division

The CPC Review Team investigators analyzed all files and written material provided by the RCMP to assess the appropriate handling of each case against the Chair-initiated criteria and terms of reference (specifically: line management, level of response, timeliness, member conduct, and compliance with policy). In addition, the investigators also sought to determine overall, whether the investigative techniques used were appropriate (or whether others should have been employed), and whether the treatment of the subject member and witness officers was appropriate in each case.

When the final selection of cases was made, if any of the original cases selected were deemed to be outside the parameters of the public interest investigation, the file was removed from the sample and a new file was then randomly inserted in its place. This process ultimately resulted in a random sample of 25 cases for review chosen from across the country. In addition, three cases previously reviewed by the CPC were added to the investigation, resulting in a total overall review of 28 cases.

Overall, of the 28 investigations reviewed, seven (25%) were from British Columbia (E) Division; five (18%) were from Manitoba (D) Division; five (18%) were from Nunavut (V) Division; four (14%) were from Saskatchewan (F) Division; four (14%) were from Alberta (K) Division; two (7%) were from Northwest Territories (G) Division; and one (4%) was from Newfoundland and Labrador (B) Division.

Types of cases reviewed by category

Of the overall 28 cases reviewed, six were death cases, another eight involved sexual assault and the 14 remaining cases were assault causing bodily harm.

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Stage 5: Cases for Full-Field Investigation

After completing a comprehensive file review of the 28 cases, the CPC Review Team investigators then recommended that full-field reviews be undertaken for a select number of cases. The general criteria used by the investigators to determine whether a full-field review should be pursued included: the severity of the alleged offence, the charge(s) laid (under- or over-charging or non-charging where it may have been deemed appropriate to do so), any aberrations or questionable practices, as well as best practices. It is important to highlight that one case was selected specifically because it was deemed to be a good example of how an investigation could be undertaken by police due to the exceptional quality of the administrative review.³⁰

Overall, eight cases (which included the best practice case) were selected for full-field review. This included five cases from the RCMP-drawn files, as well as one case that was considered a "best practice" example, and three other cases specifically drawn from CPC-housed files that fit the parameters of the Chair-initiated complaint.

The final stage involved interviewing the subject and witness officers as well as civilians involved in the cases. The interviews began in October 2008 and included trips to various divisions and detachments. In total, 31 members were interviewed regarding the files selected for in-depth review. Thirteen civilians were asked to be interviewed for the purposes of this report but refused or did not respond to our request for an interview. One comment from a family member associated to one file stated: "It won't do any good, they have all been promoted and transferred out" when referring to the RCMP members involved.

Below is a table that briefly summarizes the location, type of offence, and outcome of each of the 28 cases. Each of the full-field investigations is shaded.

Case Number	Type of Offence	Description	Status/Outcome
1. Newfoundland and Labrador B Division Full-Field Investigation	Sexual Assault Sexual Exploitation	RCMP member accused of sexual relations with young persons while on duty in the victims' community.	Accused member criminally charged with one count of Sexual Assault (s. 271 C.C.) and one count of Sexual Exploitation (s. 153 C.C.).Accused member pleaded guilty to the charge of Sexual Exploitation and was sentenced to a 12-month conditional sentence followed by 12 months probation. The charge of Sexual Assault was withdrawn. Accused member resigned from the RCMP.
2. Manitoba D Division Case File Review	Sexual Assault	Unidentified RCMP member accused of sexually assaulting civilian while lodged in detachment cell block.	No charges recommended. No charges laid.
3. Manitoba D Division Case File Review	Assault Causing Bodily Harm	RCMP members accused of assaulting civilian during booking.	No charges recommended. No charges laid.
4. Manitoba D Division Case File Review	Sexual Assault	RCMP member accused of sexual assault against another RCMP member in a private residence.	Accused member criminally charged with Sexual Assault (s. 271 C.C.)Accused member acquitted of criminal charge at trial.
5. Manitoba D Division Case File Review	Assault Causing Bodily Harm	RCMP members accused of assaulting civilian during arrest.	No charges recommended. No charges laid.
6. Manitoba D Division Full-Field Review	In-Custody Death: Member-Involved Shooting (fatal)	RCMP member accused of fatally shooting a civilian following an arrest.	No charges recommended. No charges laid.Result of coroner's inquest: Found no fault on the part of the members involved.
7. British Columbia E Division Case File Review	Assault	Members of RCMP ERT accused of using excessive force against a civilian during arrest.	No charges recommended. No charges laid.
8. British Columbia E Division Case File Review	In-Custody Death: Sudden Death – Drowning	RCMP members accused of the drowning death of a civilian following a vehicle pursuit.	No charges recommended. No charges laid.Result of coroner's inquest: Found no fault against the RCMP.One of the members involved in the incident had since retired.
9. British Columbia E Division Case File Review	Assault	RCMP members accused of abducting and assaulting a civilian.	No charges recommended. No charges laid.
10. British Columbia E Division Case File Review	Historical Sexual Assault	RCMP member accused of sexual assault against a civilian.	No charges recommended. No charges laid.
11. British Columbia E Division Case File Review	Assault Causing Bodily Harm	RCMP member accused of assault causing bodily harm against a civilian during questioning.	Accused member criminally charged with three offences: Assault Causing Bodily Harm (s. 267(b) C.C.); Torture (s. 269.1 C.C.); and Obstructing Justice (s. 139 C.C.)Accused RCMP member pled guilty to Assault Causing Bodily Harm; sentence unknown.Charges of Torture and Obstructing Justice were withdrawn.One RCMP member at the scene of the assault was charged with Code of Conduct offence and forfeited 10 days pay. No charges recommended. No charges laid.Auxiliary constable at the scene of the assault was dismissed. No charges recommended. No charges laid.
12. British Columbia E Division Full-Field Review	Assault – Excessive Force	RCMP members accused of assaulting a civilian during arrest and booking.	No charges recommended. No charges laid.
13. British Columbia E Division Full-Field Review	Historical Sexual Assault	RCMP members accused of sexually assaulting two young persons.	No charges recommended. No charges laid. One of the members involved resigned and the other member retired.
14. Saskatchewan F Division Case File Review	Sexual Assault	RCMP member accused of sexually assaulting a civilian in a private dwelling.	Accused member criminally charged with Sexual Assault (s. 271 C.C.)Accused member pled guilty to the named offence and received a suspended sentence with 12 months probation.Accused member charged with Code of Conduct offence and forfeited 10 days pay.
15. Saskatchewan F  Division Case File Review	Assault	RCMP members accused of assaulting civilian while lodged in detachment cell block.	No charges recommended. No charges laid.
16. Saskatchewan F  Division Full-Field Review	Fatal Motor Vehicle Collision	RCMP members accused of fatally wounding a pedestrian who was lying on the roadway with their marked police car while responding to a call.	No charges recommended. No charges laid.
17. Saskatchewan F Division Full-Field Review	In-Custody Death	Deceased suffered a fatal stroke while in cells after being arrested for public drunkenness and causing a disturbance. (Prior to the arrest, the deceased was treated and released from hospital for injuries suffered from a physical altercation with another civilian.)	No charges recommended. No charges laid.Result of coroner's inquest: Found that death was in no way caused by another person.
18. Northwest Territories G Division Case File Review	Assault	RCMP member accused of assaulting civilian on two separate occasions during arrest and booking.	No charges recommended. No charges laid.
19. Northwest Territories G Division Case File Review	Sexual Assault	RCMP member accused of sexually interfering with a young person.	No charges recommended. No charges laid.
20. Alberta K Division Case File Review	Sexual Assault	RCMP member accused of assault and sexual assault against a civilian while in cells.	No charges recommended. No charges laid.
21. Alberta K Division Case File Review	In-Custody Death	Deceased was arrested by RCMP members and lodged in cells where he later died.	No charges recommended. No charges laid.Result of Autopsy: Death by natural causes.
22. Alberta K Division Case file review	Assault Causing Bodily Harm (Excessive Force)	RCMP members accused of excessive force while attempting to subdue a combative civilian in detachment cells.	No charges recommended. No charges laid.Civil litigation pending.
23. Alberta K Division Full-Field Review	Assault Causing Bodily Harm	RCMP member accused of excessive force against a civilian during arrest.	Accused member criminally charged with Common Assault (s. 266 C.C.) Criminal charge against accused member stayed.Result of Code of Conduct investigation: Allegation of excessive force was unfounded.
24. Nunavut V Division Case File Review	Assault	RCMP member accused of excessive force against a civilian during arrest.	No charges recommended. No charges laid.
25. Nunavut V Division Case File Review	Improper Use of Force – Assault	RCMP member accused of assaulting a civilian during booking.	No charges recommended. No charges laid.
26. Nunavut V Division Case File Review	Assault	RCMP member accused of assaulting a civilian during the execution of a search warrant.	No charges recommended. No charges laid.
27. Nunavut V Division Case File Review	In-Custody Death: Member-Involved Fatal Shooting	RCMP members fatally shot a civilian who had taken a young person hostage.	No charges recommended. No charges laid.
28. Nunavut V Division Full-Field Review	Assault Causing Bodily Harm	RCMP members accused of excessive force against a civilian during arrest.	No charges recommended. No charges laid.

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4 (b) CPC Assessment of RCMP Cases

The 28 files reviewed by the CPC investigators were assessed on the criteria established in the November 26, 2007 complaint, outlined below.

A detailed assessment of each of the CPC complaint criteria follows.

Criterion 1(a) Line Management: any actual/perceived conflict of interest; appropriateness of management structure and reporting relationships

A baseline definition of what constitutes "appropriate" line management for the RCMP's handling of an investigation into another member was developed in order to effectively compare each individual case against established criteria for assessment. The key features of appropriate line management include the following:

1. Sufficient physical and personal distance between the subject member and the primary investigator/investigative team tasked with the investigation.
   • Physical distance defined as investigation handled by a different detachment/division from the subject member's home detachment (or by an external police force entirely).
   • Personal distance defined as subject member not personally known to the investigative team members.
   • Particular attention must be paid to:
     • The primary investigator's physical and personal distance from the subject member;
     • Appropriate use and independence of specialized services used in the course of the investigation (polygraph examiner, accident reconstructionist, etc.).
2. Adequate investigative team makeup to undertake the task (i.e. primary investigator plus another investigative team member at a minimum; primary investigator should be at least one rank higher than the subject member being investigated).
3. Investigating member self-identification of conflict of interest adequately addressed (i.e. where self-identification occurs, appropriate removal from investigative team occurs).

This baseline criteria was assessed against the 28 cases reviewed. Some of the key findings from the CPC investigators' reviews are highlighted below.

1 (a) i. Physical and personal independence of investigative team maintained

Given the significant authority and level of decision-making afforded the position of the primary investigator, it was particularly important to determine what differential, if any, existed between the primary investigators' level of independence relative to the subject member. The proximity was not identified in five of the 28 cases. Three members did not respond to the questionnaire provided them. One investigator did not recall whether he knew the subject member prior to the investigation, and another investigator would not answer the CPC's questions given the civil litigation pending.

The CPC defined "personal knowledge" as any contact with the subject member prior to the incident, which could include:

• working with-or under the supervision of-the subject member prior to the incident (including physical or telephone contact);
• mutual participation or attendance at courses, seminars or any other training event;
• engagement in a function of a social or personal nature which could include an RCMP mess function, a seasonal event (Christmas party), golf tournament or retirement function.

This definition of "personal knowledge," outlined above, was used to assess the level of independence between the RCMP primary investigators and the subject members for each of the 28 cases.

CPC Finding No. 5: Overall, personal knowledge of subject member for primary investigators occurred 25% of the time and 4% of primary investigators were from the same detachment as the subject member.

The CPC sought to assess whether the challenges faced by northern and remote RCMP detachments accounted for the bulk of the primary investigators with personal or physical proximity to the subject member. The CPC analysis revealed that of the primary investigators polled, 26%³¹ identified themselves as "personally knowing" or "from the same detachment" as the subject member. Of these 26%, 14% were from a remote or northern posting (with 7% coming from Nunavut (V) Division and 7% from Northwest Territories (G) Division respectively).

CPC Finding No. 6: As graphically depicted below, there was a slightly higher likelihood of primary investigators personally knowing the subject member (14%) in remote and northern postings than in other more centralized locations (12%). However, there does remain a large number of primary investigators (12%) from more centralized divisions where external assistance is more readily accessible.

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Use and independence of specialized services

Equal attention must be made to ensure the independence of specialized services used in member investigations. These specialized services could include, but are not limited to, polygraph examiners, accident reconstructionists and provincial forensic science laboratories. Lack of independence in the specialized services used could raise a risk of real or perceived conflict of interest.

Out of the 28 cases reviewed, only four used specialized services, including a polygraph examiner in two cases, an accident reconstructionist in one case and a provincial transport vehicle safety examiner. All professionals used by the RCMP in each of these three cases were from different detachments, and in one case from a different division.

One of these four cases could be perceived as lacking independence in the use of specialized services. The accident reconstructionist used in a fatal motor vehicle accident that occurred in Saskatchewan was from a detachment in the same division. Recommendations around the degree of independence believed necessary to ensure impartiality and the absence of conflict of interest are addressed later.

CPC Finding No. 7: Overall, in the opinion of the CPC investigators, the use of expert witnesses in the cases was appropriate.

Where an expert was required, members did use specialist services available. In a police motor vehicle collision fatality, not only did the RCMP call in forensic personnel, but also requested an accident reconstructionist with the highest level of qualifications, in addition to a provincial ministry of transport vehicle safety examiner as well as an independent member of the First Nations community.

In the two cases reviewed where a polygraphist was used, the examiner was from another division and did not know the subject member.³²  

1 (a) ii. Appropriate investigative team makeup

Of the 28 cases reviewed, 17 of these had only one primary investigator assigned to a member investigation. Five of the cases had two investigators assigned, five cases were done by a Major Crime Unit (with four to six investigators assigned), and one case had three General Investigation Section (GIS) investigators assigned.

Furthermore, of the 28 RCMP files reviewed, seven of the files were investigated by a primary investigator of the same or lower rank as the subject member.³³

This rank differential between the primary investigator and the subject member is deemed to be inappropriate given that it risks the potential for intimidation of the primary investigator by the higher ranking subject member. The possibility also exists that the primary investigator could potentially be supervised at a later date by the subject member, thereby creating the potential for a junior ranking primary investigator affording the higher ranking subject member preferential treatment in favour of future considerations. This potential conflict of interest must be taken into consideration.

The CPC recommends that the rank of the primary investigator be at least one rank higher than that of the subject member. The purpose for this is to avoid possible intimidation of the primary investigator by the higher ranking subject member.

CPC Recommendation No. 2: The CPC recommends that the rank of the primary investigator must be at least one rank higher than that of the subject member.³⁴

In addition, assigning a single investigator to a member investigation (as was the case in 17 of the 28 cases reviewed) is a particular concern. Interviewing anyone involved (particularly the subject member) is best conducted by a two-member team. A one-member investigation would contribute to the potential for (or perception of) a conflict of interest.

CPC Finding No. 8: Overall, the number of team members assigned to the 28 investigations was inadequate.

The conflict of interest issue must be taken into consideration in these cases. No explanation of the rationale (be it resources, location or seriousness of the offence) will satisfy the public or other special interest groups that these investigations are unbiased.

Ideally, a minimum of two members assigned to conduct the investigation would assist in expediting the investigation by ensuring that all aspects of an investigation could continue regardless if one member of the team is absent.

CPC Recommendation No. 3: In order to reduce the length of time to conduct statutory investigations against RCMP members, it is recommended that member investigations be assigned to a team of (minimum) two members in a specialized investigative unit.

For those investigations involving more than a single investigator (five files that were investigated by the Major Crime Unit (MCU) and the other files where two team members were assigned) the number team makeup is deemed overall appropriate.

1 (a) iii. Investigating member self-identification of conflict of interest adequately addressed (i.e. where self-identification occurs, appropriate removal from investigative team occurs)

There was only one of the 28 cases where self-identified conflict of interest occurred.  This file was from a northern community in a small detachment. The investigation had originally been assigned to the Officer in Charge of the Major Crime Unit (MCU) at the detachment; however, the member declined to investigate given that he was a personal friend of one of the subject members.

The self-identification of conflict of interest by the RCMP member was handled appropriately in this case given that he removed himself from the case. However, the results were less than desirable. The file was then eventually assigned to a Constable with approximately one years experience in the MCU.  The Acting Criminal Operations Officer at the time of the investigation indicated to the CPC investigators that in hindsight this file should have been assigned to an outside municipal police service given that the injuries were severe.

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Overall Assessment of CPC Criterion 1 (a) Line Management

Based on the preceding analysis, the graph below summarizes the CPC investigators' overall assessment of the total level of appropriateness of the RCMP line management in the 28 cases reviewed. A total of 19 cases (68%) were deemed to be handled either partially or entirely inappropriately. Of particular concern was the use of a lone investigator and the primary investigator's personal knowledge of the subject member.

CPC Finding No. 9: Overall, the CPC found the structure and reporting relationships of the 28 cases reviewed to be partially or entirely inappropriate (68%).

Criterion 1(b) Appropriate Level of Response: response appropriate and proportionate to gravity of incident and whether qualified investigators have been assigned.

A definition of what constitutes an "appropriate" level of response with regards to the RCMP's handling of an investigation into another member was developed in order to effectively compare each individual case against established criteria for assessment. The key features of what constitutes an "appropriate" level of response include the following:

1. Interviews of subject member and witnesses appropriate as well as appropriate access to information.
   • Use of expert witnesses appropriate (i.e. polygraphists, accident reconstruction personnel, identification specialists and other outside agencies were utilized when and where necessary).
2. Referral of investigation appropriate relative to the seriousness of the allegation (e.g. sexual assault, assault with a weapon, criminal negligence causing death).
   • Investigation appropriately redirected and run by the Major Crime Unit (MCU), where appropriate.
3. Investigators met or exceeded baseline qualifications recommended for investigators tasked with in-custody deaths, shootings, serious assaults/injuries and sexual assault investigations):
   • Primary investigator: Prior experience in conducting statutory, public complaint, and Code of Conduct investigations. In addition, the major crime course and interviewing or interrogating techniques courses with knowledge and experience with the Major Case Management (MCM), where possible.
   • Investigative team members: At a minimum, the major crime course and interviewing or interrogating techniques courses. Knowledge and experience with MCM, where possible.
4. Workload of investigation team members adjusted (or reassigned) where appropriate to ensure ability to focus on member investigation.
5. Appropriate consultation with provincial Crown attorney prior to laying of charges.
6. Appropriate use of the administrative review.³⁶

This baseline criterion outlined above was assessed against the 28 cases reviewed. The key findings from the CPC investigators' reviews are highlighted below.

1 (b) i. Interviews of subject member and witnesses appropriate

CPC Finding No. 10: Of the 28 files that the CPC investigators reviewed, it was found that in 17 of these files, the subject member and witnesses were investigated by a lone RCMP investigator.

This is deemed to be inappropriate. In reviewing the cases, it was determined that while this type of interviewing technique did not have any negative impact on the outcome, the potential did exist for a conflict of interest (either real or perceived). Furthermore, in order to address any Charter arguments (in relation to duress, intimidation, promises, inducements, etc.) the presence of a second investigator would help to eliminate this potential problem in any future court proceedings.

1 (b) ii. Referral of cases to appropriate section

In those cases involving member-involved shootings or deaths where the possibility of a homicide exists, the divisional Major Crime Unit (MCU) was assigned to the investigation. However, some of the serious assault causing bodily harm incidents were assigned to the Detachment Commanders or general duty members, thereby illustrating that there are no formal criteria in place to identify which section an investigation should be assigned.

It is important to address the inconsistent use of units/individuals assigned to member investigations across divisions. In some divisions, units assigned are called the Serious Crime Units; however, in other divisions they are referred to as the Major Crime Unit.

CPC Finding No. 11: Overall, the section or unit tasked with member investigations (including their mandates) lack uniformity across the country.

In one file, the primary investigator asked the Officer in Charge for assistance from the MCU and was refused because the complaint was over twenty years old. However, in the CPC's opinion, the request for the MCU to handle the investigation was valid given that the complainant alleged that members of the RCMP had murdered his son. This example serves to show that in some instances, complaints are not taken as seriously as they should be and not given the proper attention deserved, nor are they assigned to the appropriate units/sections.

1 (b) iii. Qualifications

Earlier in this chapter, a baseline for the qualifications expected for both the primary investigator and the investigative team member were set:

• Primary investigator: Prior experience in conducting statutory, public complaint, and Code of Conduct investigations. In addition, the major crime course and interviewing or interrogating techniques courses with knowledge and experience with the Major Case Management (MCM),³⁷ where possible.
• Investigative team members: At a minimum, the major crime course and interviewing or interrogating techniques courses. Knowledge and experience with MCM, where possible.

When comparing member qualifications against this criterion, the CPC investigators found that there was a lack of consistency in the qualifications of the members assigned to undertake member investigations. For example, one member had no formal general investigation experience at all (however, he did have 15 years experience in general police duties and had previously conducted approximately 40 statutory investigations).

CPC Finding No. 12: In the 28 case files reviewed, the qualifications of the investigators varied greatly. Some had all the major crime and related courses, while others had as few as two years experience in the General Investigation Section.

Based on this analysis, the CPC investigators made additional recommendations regarding the qualifications necessary for members assigned to member investigations.

CPC Recommendation No. 4: The RCMP should assign competent senior investigators with a proven track record in court who have completed the appropriate courses (e.g. sexual assault, major crime, interviewing and interrogation techniques and statement analysis); who can effectively interview witnesses with strong analytical skills.

1 (b) iv. Workload of investigation team members adjusted (or reassigned) where appropriate to maximize focus on member investigation

The workload of the members assigned was a questionable issue. When a file was assigned to a general duty member, in most cases the CPC found that the investigator was not relieved of regular duties. This issue was raised by most members interviewed. As such, member investigations are dealt with when time permits. In cases where the incident is alleged to have occurred some time in the past, members expressed no urgency in completing the investigation.

In the course of an interview with the CPC investigators, one RCMP member revealed that as far as he was concerned, the member investigation was "just another file" among many to him, stating that the file was just another one added to the "pile." The notion of members being given multiple files and no workload adjustment to ensure that adequate attention is paid to ensure an effective and timely investigation is problematic.

CPC Finding No. 13: Overall, it was found that the investigations conducted by the Major Crime Unit were focused and completed in a timely fashion, as they had the ability, resources and the time to conduct the investigation. This was not found to be the case when the investigation was assigned to a Detachment Commander or General Duty or GIS member whose heavy workload was not adjusted accordingly.

CPC Recommendation No. 5: Workload of members assigned to member investigations should be reassigned or adjusted to prioritize member investigations accordingly.

1 (b) v. Appropriate consultation with the Crown for determination of charges laid against subject member

One issue of particular relevance in structure and line management is the consultation with a provincial Crown counsel before the laying of a charge. The Criminal Code of Canada gives the police the authority to lay a criminal charge. However, the provincial governments in British Columbia, Quebec, and New Brunswick make it mandatory for police to consult with a provincial Crown counsel before a criminal charge is laid against a police officer or any other person.

National RCMP policy requires consultation with the Crown in all cases as per the national Investigation Guidelines policy, which states:

• F.2. "If there is evidence to support a prosecution, consult Crown counsel."
• F.2.(a). "If there is any conflict with the Crown counsel, refer it to the Cr. Ops. Officer."

Below is a detailed breakdown of the consultation with Crown counsel for the 28 cases:

The CPC review found that the RCMP's consultation with the Crown when laying a charge was handled appropriately overall, with the exception of one case.

This was a Manitoba sexual assault case against a member which resulted in the RCMP laying charges against a member without seeking Crown opinion. The member charged was later acquitted in court. While the lack of consultation is not deemed to have had any direct impact on the outcome of the case, it is a violation of policy that the RCMP must guard against, particularly given the sensitivity, level of transparency and impartiality required for these investigations.

Overall, while member actions did comply with policy, the CPC found a discrepancy between the current consultation process with the Crown for cases involving RCMP members and all other cases. At present, when the RCMP sends a file to the Crown which involves an RCMP member, the RCMP does not include a recommendation regarding how the member should be charged. This differs from the standard procedure for all other cases (not involving RCMP members) where a recommendation on how to proceed is, in fact, included.

Within the context of his Inquiry into the Death of Frank Paul, Justice William H. Davies, Q.C. also found that in British Columbia, in the case of every police-related death, the Vancouver Police Department forwards a "neutral" report to Crown counsel without making a recommendation as to whether criminal charges should be laid, which contradicts the departmental manual requiring police officer to send the report to Crown counsel only "if the evidence supports a charge."

CPC Recommendation No. 6: Special attention should be paid to enforce the RCMP requirement to consult with the Crown prior to laying any charges against members, given the particular need for independence and impartiality in member investigations. The RCMP should also undertake a review regarding recommendations made to the Crown in cases involving RCMP members.

1 (b) vi. Appropriate use of administrative review

As outlined previously in this report, an administrative review is generally defined as an independent review of all aspects of an incident undertaken with the express intent of identifying potential deficiencies in policy, training, equipment and/or member techniques.

CPC Finding No. 14: Of the 28 cases reviewed, six of which involved death, an administrative review was only undertaken in four cases: two of which were member-involved shootings (Manitoba (D) & Nunavut (V) Divisions); and two of which were in-custody deaths (Saskatchewan (F) and Alberta (K) Divisions).

The four administrative reviews undertaken resulted in one instance of the investigators being instructed to interview one or two more witnesses before completing the investigation.

CPC Recommendation No. 7: Given the sensitivity and transparency required for member investigations, it is recommended that administrative reviews be undertaken in all cases of serious injury, sexual assault or death.

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Use of the probe

The use of a "probe" in one specific division, Manitoba (D), is a best practice worth noting. A "probe" is often ordered when a complaint has a criminal element but may lack sufficient information to determine how to proceed. The "probe" consists of:

• Interviews with the complainant, victim and any other third-party witnesses;
• A review of operational files related to the complaint; and
• A review of members' notes and reports;

* It is important to note that subject members are not to be requested to provide witness or warned statements at this time.

The investigator assesses the information collected from the probe and drafts a report that summarizes the incident, the complainant's statement, and the results of the file review, helping to determine how best to proceed.

CPC Recommendation No. 8: The RCMP should consider applying the use of the "probe" to lower-end investigations in all divisions.

CPC Recommendation No. 9: The RCMP could consider recommending that the Officer in Charge of the Criminal Operations Section be the appropriate recipient of the probe report in order to determine whether or not a lower-end investigation should proceed to a statutory investigation.

In addition, the probe report should be in an investigation report form and should include appendices of all referenced material, including a copy of the operational file from which the complaint stemmed. It is important that the report be fact-based, and not opinion-based. The investigators' role is to simply present the facts and should focus solely on the criminal aspects of the complaint and not any potential Code of Conduct issues.

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Overall Assessment of Criterion 1(b) Level of Response

Based on the preceding analysis, the graph below depicts the CPC investigators' overall assessment of the level of appropriateness of the RCMP level of response in the 28 cases reviewed. Sixty-eight percent of cases were deemed to be handled partially or entirely inappropriately.

CPC Finding No. 15: The CPC found that, overall, the level of response was handled partially or entirely inappropriately (68%). Key concerns related to interviews being undertaken by lone investigators as well as inconsistent referral of cases to the appropriate investigative unit.

Otherwise, it was found that all witnesses who were willing to cooperate were interviewed, witness statements taken, as well as expert witnesses (i.e. polygraph examiners, accident reconstruction personnel, identification specialists and other outside agencies) were used when and where necessary.

Criterion 1(c) Timeliness of Response: investigative team responded in timely manner

A baseline definition of what constitutes a "timely" response by the investigative team was developed in order to effectively compare each individual case against established criteria for assessment. 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.³⁸
3. Immediate dispatch of necessary personnel where timely response required.

The following section assesses the overall timeliness of the 28 cases reviewed against the established baseline criteria, outlined above.

1 (c) i. Overall completion of member investigation in six months (or less)

The CPC review revealed that the average amount of time for the 28 criminal member investigations was six months. In taking a closer look at these numbers, the graphic below demonstrates that the timeliness of the member investigations is, overall, appropriate. The bulk of the cases (60%) were completed in less than six months. However, 19% of the cases did exceed the one-year mark, as addressed next.

1 (c) ii. Investigations, if possible, should not exceed one year

As per the above timeline, when a member investigation 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. Out of the 28 cases reviewed, 19% (five cases) took over one year to complete-which could have excluded members from the RCMP internal disciplinary processes, if required.

It is important to contextualize that of the 28 cases reviewed, no charges were laid in 23 cases.

Cases Where Charges Were Laid Against Subject Members³⁹

Of the five cases where charges were laid, a total of eight charges were laid.

1. One case that occurred in Newfoundland and Labrador (B) Division, where the subject member was accused of sexual relations with young persons while on duty in the victims' community, the following charges were laid:
   • Sexual Assault (s. 271 C.C.)
     • Outcome: Charge withdrawn.
   • Sexual Exploitation (s. 153 C.C.)
     • Outcome: Subject member pleaded guilty.
2. One case that occurred in Manitoba (D) Division, where the subject member was accused of sexually assaulting another RCMP member in a private residence, the following charge was laid:
   • Sexual Assault (s. 271 C.C.)
     • Outcome: Subject member acquitted of charge at trial.
3. In the case that occurred in British Columbia (E) Division, where the subject member was accused of assault causing bodily harm against a civilian during questioning, the following charges were laid:
   • Assault Causing Bodily Harm (s. 267 (b) C.C.)
     • Outcome: Subject member pleaded guilty.
   • Torture (s. 269.1 C.C.
     • Outcome: Charge withdrawn.
   • Obstructing Justice (s. 139 C.C.)
     • Outcome: Charge withdrawn.
4. In the case that occurred in Saskatchewan (F) Division, where the subject member was accused of sexually assaulting a civilian in a private dwelling, the following charge was laid:
   • Sexual Assault (s. 271 C.C.)
     • Outcome: Subject member pleaded guilty.
5. In the case that occurred in Alberta (K) Division, where the subject member was accused of using excessive force against a civilian during arrest, the following charge was laid:
   • Common Assault (s. 266 C.C.)
     • Outcome: Charge stayed.

CPC Finding No. 16: Of the eight charges laid, three (37.5%) resulted in successful convictions, while five (62.5%) resulted in no convictions.⁴⁰

The overall timely completion of the investigations depended a great deal on what unit was assigned the investigation. For example, should the investigation be assigned to only one regular General Investigation Section member with an active workload, the investigation could take months to complete. Given that 17 of the 28 cases involved a single investigator assigned to the file, in some cases, this resulted in the file standing still due to the member's time off, sick leave, court appearances, attendance at courses as well as regular days off.

Another major factor that affects the timeliness of the investigation is the transient nature of the civilians and witnesses involved. This was evident in some of the files reviewed. In one particular case the primary investigator sent alerts to the detachments in an attempt to locate the complainant resulting in weeks of inactivity on the file. When located after several weeks, the complainant told the primary investigator that he did not want to become involved. It should be noted here that this was a third party complaint that was made and assigned to a General Investigation Section member who again had a significant workload. In another file, the complaint named a witness who lived in various towns and who was extremely difficult to locate, only to discover, upon interviewing him, that the witness knew nothing of the incident being reported.

Overall Assessment of Criterion 1 (c) Timeliness

As illustrated in the graph below, the timeliness of the 28 cases was deemed to be overall appropriate (82%).

CPC Finding No. 18: The CPC found that most investigations were completed in a timely manner. The files that took significantly longer to complete were not due to a lack of interest but rather to the heavy workload of the investigator in addition to general hindrances encountered (court dates, difficulty locating witnesses or complainants, employee absence, etc.).

Criterion 1(d) Conduct: conduct consistent with section 37 of the RCMP Act

A baseline definition of what constitutes "appropriate" member conduct, for the purposes of this analysis, was based on how well members complied with section 37 of the RCMP Act. Section 37⁴¹ legislates eight specific criteria requiring that members, as representatives of the RCMP, act respectfully, dutifully and free from conflict of interest.

The CPC investigators based their opinion regarding the conduct of the investigating members on the thoroughness of the files, the quality of the reports, the video taped interviews of subject members, and the manner in which the interviewed members conducted themselves with the CPC investigators. Also taken into consideration in determining the conduct of the subject members was the fact that in most cases statements were supplied to the investigators despite not being compelled to do so.

The CPC investigators assessed the conduct of the primary investigator and the other investigative team members and did not identify any issues with regards to the conduct of these RCMP members. It is worth noting that in one investigation⁴² the conduct of the subject members came into question by the trial judge. It was his opinion that the civilian person charged with assaulting police was in fact the subject of police brutality.

Overall Assessment of Criterion 1(d) Conduct

The overall assessment of appropriate member conduct is depicted below. CPC investigators found that 100% of cases were handled in full compliance with section 37 of the RCMP Act.

CPC Finding No. 19: Overall, the CPC found that the RCMP investigators were free of bias and were professional and conscientious in their approach to their assignments. It was also found that most subject members and witness members cooperated with the CPC investigators and conducted themselves in a professional manner.

Handling of Historical Cases

A key issue that emerged from the case file review involved the RCMP's handling of historical complaints in particular. A complaint filed months or years following an incident is referred to as a "historical case." The very nature of historical cases can make access to evidence and witnesses more challenging, requiring specialized skills and attention not typical of most investigators. These types of investigations can be further complicated by witness memory (or lack thereof), loss of evidence, an inability to locate identified witnesses and the inability to properly identify the subject member in question. Furthermore, not having the appropriate time to conduct a thorough investigation can result in a perception of a conflict and a lack of interest by the investigator.

In these types of historical cases, it was found that the push for immediate action on the part of the investigating member was not paramount. It was found that historical allegations would be investigated like any other file and would fall into the everyday workload of the investigator. During a CPC interview, one investigator questioned why he would prioritize a historical complaint against a member over his other investigations which were just as important to him (as well as to the complainants).

An assessment of whether RCMP historical member investigations were handled appropriately revealed that, overall, these types of cases were not given priority and took an atypically long time to investigate. Of the three historical cases reviewed, two of them took more than a year to complete the investigation.

CPC Recommendation No. 10: Historical cases require expertise not typical of most investigators. It is therefore recommended that these types of cases be handled by a specialized unit at the national or regional level.

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Criterion 2: Policy Compliance

Whether these same RCMP members complied with all appropriate policies, procedures, guidelines and statutory requirements for such investigation.

In order to assess member compliance with RCMP policy, the CPC investigators were required to access and review all policies, procedures and statutory requirements in place to guide member actions with regard to member investigations.⁴³ Given the varied timeframes in which each of the 28 investigations took place, the CPC Review Team requested-and was provided with-all relevant detachment, divisional and national RCMP policies, procedures or guidelines in place at the time of each investigation. This resulted in a sizeable number of relevant documents for review in each case.⁴⁴

Following receipt of these documents, the CPC investigators then assessed if members were in compliance with the policies in place at the time the RCMP investigations were undertaken.

It is important to note that this section is intended to focus solely on compliance with policy (not adequacy, which is assessed in greater detail in chapter 3). It is worth noting, however, that the CPC investigators echoed the sentiment that policies varied between divisions and even detachments.

Overall assessment

The relatively minor occurrences of non-compliance with policy were discovered by the Senior Officer conducting an administrative review relating to two violations of the cell block policy. They were as follows:

1. The members did not have detailed notes placed on the investigative file certifying the person to be fit for incarceration in contravention of the Assessing Responsiveness/Medical Assistance policy (OM19.2.2.5).
2. The lodging member failed to complete the area on C-13, which is the cell block form that lists all the persons in the cells and why they are there, indicating the date, time and who medically examined the prisoner and determined he was fit to be incarcerated in contravention of the Assessing Responsiveness/Medical Assistance policy (OM19.2.2.5.1).

In another file involving an alleged sexual assault, the investigators laid a charge without consulting with the provincial Crown. This therefore contravenes national policy as per the national Investigation Guidelines policy, which states:

• c. F.2. "If there is evidence to support a prosecution, consult Crown counsel."
• d. F.2.(a). "If there is any conflict with the Crown counsel, refer it to the Cr. Ops. Officer."

Overall Assessment of Criterion 2 Policy Compliance

The graph below depicts the overall assessment of compliance with RCMP policies (93%). In only two cases, the failure of consultation with the Crown counsel and failure to comply in full with the Assessing Responsiveness/Medical Assistance policy led to non-compliance with the required policies.

CPC Finding No. 20: After an in-depth review of the randomly selected cases, it was found that in most cases, the appropriate policies were complied with. In the few cases where it was found that some aspects of the related policies were not adhered to, they were minor in nature and did not appear to have any effect on the outcome of the investigation.

CPC Recommendation No. 11: Policy guiding criminal investigations of RCMP members should be standardized nation wide. This would allow for the statutory investigations into RCMP members to be conducted uniformly across the country.

3. Overall assessment of cases based on terms of reference as per the Chair-initiated complaint

The intent of this section of the chapter is to provide an overall summary of the issues and highlight the CPC investigators' findings from the 28 RCMP member investigations (six cases involving death; eight cases involving sexual assault and 14 cases involving assault causing bodily harm).

As per the complaint parameters, the CPC investigators assessed 28 cases in order to determine how appropriately each investigation was handled against five key criteria (outlined in detail in this chapter) which include: line management, level of response, timeliness, conduct and compliance with RCMP policy.

The grid below summarizes the total level of appropriateness (from highest to lowest) of the 28 cases for each of the five complaint criteria.

Overall, RCMP member conduct was deemed highly appropriate (100%). The CPC found that the RCMP investigators charged with the task of investigating another member acted professionally and free from bias.

The CPC investigators also concluded that RCMP member policy compliance in each of the cases was overall highly appropriate (93%). Two minor violations of RCMP policy were found. In one case, an administrative review caught violations of the RCMP's Assessing Responsiveness/Medical Assistance policy. Specifically, members failed to have detailed notes on the investigative file certifying that the person was fit for incarceration, and members also failed to appropriately complete cell block log information. The second case involved an investigator laying a charge without consulting the provincial Crown, which contravenes the RCMP's national Investigation Guidelines policy, which requires consultation with provincial Crown prior to the laying of any charge.

The timeliness of investigations was also deemed overall appropriate (82%). Of the 28 cases reviewed, 60% were complete in six months or less. However, 19% of these cases took over one year to complete, thereby excluding members from internal disciplinary processes, if required. Specific concerns were also raised around the handling of historical cases which took considerably longer to investigate (one historical case still remained ongoing after 28 months at the time this report was published).

The two criteria the CPC investigators found of greatest concern were the RCMP's handling of the investigations in relation to level of response and line management. Given the fact that these two criteria specifically relate to the process of how member investigations are handled, this analysis further helps to illustrate the fact that CPC concerns relate largely to the current RCMP process (which is flawed) and not individual RCMP member action.

Of concern to the CPC was the appropriateness of the RCMP level of response (32%) in the cases reviewed. Particular concerns arose around the fact that investigations of subject members and witness officers were undertaken by a lone investigator in 17 of the 28 cases (60%) resulting in the potential for a conflict of interest or intimidation. It is important to note that while no specific conflicts of interest were found to result in these cases, the practice itself was deemed to be inappropriate.

Other concerns with the appropriateness of the RCMP level of response arose in relation to the referral of cases to the appropriate sections. CPC investigators noted inconsistent assignment of files across divisions and an absence of formal criteria to identify which section should be assigned which cases. CPC investigators also found significant disparity in the qualifications of the investigators (including the primary investigators). In addition, the complete absence of reassignment of duties or adjustment of workload for members assigned to investigators undertaking member investigations was also noted as a serious concern impacting the integrity and timeliness of investigations undertaken.

Some areas of the RCMP level of response were handled well. For example, the consultation with the Crown was handled appropriately, with one exception where charges were laid without appropriate consultation. The call for an administrative review of member investigations was also found to be inconsistently applied across the country (an administrative review was only called for in four of the 28 cases). Given the concerns with the level of response criteria in particular, significant recommendations are made in chapter 7 of this report.

Of greatest concern to the CPC was the level of appropriateness of the RCMP's line management (32%). The bulk of the 28 cases reviewed were deemed to be handled either partially or entirely inappropriately (68%). Specifically, 25% of primary investigators identified themselves as either personally knowing the subject member. Another critical concern was the fact that in 60% of the cases reviewed, a single investigator was assigned to investigate another member, thereby placing the integrity of the member investigation at serious risk for potential conflict of interest or perception of bias. In addition, in 25% of the cases, the primary investigator assigned was the same or of a lower rank than that of the subject member, thereby creating the potential for intimidation. Recommendations to address these concerns are outlined in greater detail in chapter 7, Recommended Model for RCMP Member Investigations.

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30 An independent review of all aspects of an incident undertaken with the express intent of identifying potential deficiencies in policy, training, equipment and/or member techniques

31 Please note, the percentages in this graph have been rounded up and are therefore approximate figures, which explains the slightly higher percentage 26% (than in previous "target" graph, which was represented as 25%).

32 The polygraph training dictates that the examiner should never examine another police officer whom he knows because of the potential to undermine the believability of the results.

33 In six cases, members were the same rank as the subject member and in one case a lower rank.

34 Except where Major Case Management (MCM) principles apply. The MCM is a methodology for managing major cases that provides accountability, clear goals and objectives, planning, allocation of resources and control over the direction, speed and flow of the investigation. The MCM specifies that a Team Commander (TC) assigned is "an accredited individual" whose accreditation includes successful completion of the Canadian Police College sponsored MCM Team Commander Course, as well as experience and training in major cases focussing on leadership/managerial accomplishments. Where a criminal investigation is managed by the MCU, it is sufficient for the TC to be of a higher rank than that of the subject member. See Appendix 11 for a copy of the RCMP's revised MCM policy.

35 MCM refers to a methodology for managing major cases that provides accountability, clear goals and objectives, planning, allocation of resources and control over the direction, speed and flow of investigation. Major cases are cases/investigations that are "serious in nature" and their complexity, risk and resources require the application of the MCM principles.

36 An administrative review is an independent review of all aspects of an incident undertaken with the express intent of identifying potential deficiencies in policy, training, equipment and/or member techniques.

37 MCM refers to a methodology for managing major cases that provides accountability, clear goals and objectives, planning, allocation of resources and control over the direction, speed and flow of investigation. Major cases are cases/investigations that are "serious in nature" and their complexity, risk and resources require the application of the MCM principles.

38 This is particularly important given that when an investigation of a member takes more than one year to complete (regardless if a criminal charge is ultimately laid), section 43(8) of the RCMP Act then prohibits any Code of Conduct action against the offending member.

39 This includes all cases where charges were laid (regardless of the outcome of the charge).

41 Go to chapter 3 (1) Legislation section for full list of eight criteria in section 37 (Conduct) of the RCMP Act.

43 See chapter 3 (3) RCMP Policy for more details.

44 See Appendix 7 for the full list of policies reviewed.

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