Chair-Initiated Complaint into the Shooting Death of Kevin St. Arnaud in Vanderhoof, British Columbia and into the Adequacy of the Subsequent RCMP Investigation
Analysis
Adequacy of the Investigation
An adequate investigation in a major case such as a police-involved shooting resulting in death will include: securing and preserving the scene; interviewing all known witnesses and identifying other witnesses to be interviewed who may have material evidence about the event; examining the backgrounds of both the deceased and the RCMP member; obtaining and processing relevant forensic evidence including photographic evidence, non-DNA physical evidence, DNA-related evidence and evidence related to the firearm used in the shooting; canvassing surrounding areas for any further information about the event that may be relevant; and utilizing appropriate experts. The elements of the investigation reviewed below are all relevant to the assessment of the adequacy of the investigation as a whole.
Scene Security
From the outset, it is necessary for first responders to rigorously adhere to the fundamental principles governing all investigations. Securing the scene where the shooting took place should have been a priority; as in any criminal investigation, the preservation of physical evidence is a critical task. However, after ensuring that Mr. St. Arnaud posed no further threat and that Constable Sheremetta was not injured, Constable Erickson left Constable Sheremetta alone at the scene while she twice went to his vehicle to look for his jacket, in each instance leaving the scene for several minutes. As Constable Sheremetta was the subject of the investigation, he should not have been left alone at the scene.
This is not to say that Constable Erickson should not have taken some action to address Constable Sheremetta's exposure to the cold. Her concern was understandable. However, the preferred option would have been to escort Constable Sheremetta to her vehicle where he could keep warm and where she could still maintain visual oversight of the crime scene. Indeed, this is what she later did, after the ambulance attendants had attended the scene and while the officers waited for their supervisors to arrive.
Constable Erickson remained at the scene while Staff Sergeant Kowalewich, Corporal MacLellan and Constable Sheremetta attended the detachment. No explanation was provided as to why, in her capacity as a key witness to the shooting, she was left to provide scene security. She noted that she was relieved briefly at 2:01 a.m. by Sergeant Grobmeier. She returned to the scene at 2:07 a.m. Although her notes were not as detailed as that of Constable Muraca, who eventually took over scene security,39 Constable Erickson did make reference to attendees at the scene.
Constable Muraca relieved Constable Erickson at 3:16 a.m. and took over scene security. His notes amount to a log of all of the comings and goings at the scene, as well as descriptions of vehicles and pedestrians who passed by on the street during the hours that he oversaw the scene.
In this case, it should be recognized that Constable Erickson was a key witness and colleague of Constable Sheremetta. As such, her role in the subsequent investigation ought to have been kept to an absolute minimum. While I recognize the human resource demands in small detachments, key witnesses need to be treated as such and in this case other options were available.40 In any event, there is no evidence in the file that would support that any consideration was given to Constable Erickson's role in the investigation.
Finding: Constable Erickson failed to ensure scene security at the soccer field immediately following the shooting.
Finding: Staff Sergeant Kowalewich should have removed Constable Erickson from the scene at the earliest opportunity, as she was a key eyewitness to the shooting.
Finding: Staff Sergeant Kowalewich should have removed Constable Erickson from the scene at the earliest opportunity, to avoid any real or perceived bias, given her work relationship with Constable Sheremetta.
With respect to scene security at the mall, there is no explanation as to why Corporal Paul did not assume that post until 7:20 a.m. Staff Sergeant Kowalewich noted that he called Corporal Paul in for that purpose, yet it was more than four hours before he undertook that task. Corporal Paul's notes did not provide any details for the delay in commencing security at the mall nor was a log maintained of the individuals coming and going, as was kept by Constable Muraca at the soccer field. I recognize that human resource constraints at small detachments often require prioritizing duties and this may have been the case here. However, the written record does not provide any rationale for the delay. Furthermore, other members had arrived on the scene, and the tasks carried out by Corporal Paul subsequent to the brief investigation for surveillance videos were administrative tasks at the detachment.
Finding: Staff Sergeant Kowalewich failed to ensure scene security at the mall from the earliest opportunity.
Scene Preservation
After the shooting, Constable Erickson approached the scene to assess whether Mr. St. Arnaud posed a threat and then to check on Constable Sheremetta. These were proper actions under the circumstances.
According to one of the ambulance attendants, Mr. Hunsaker, Constable Erickson told him and the other attendant, Mr. Vanderploeg, that it was a crime scene and they should proceed to Constable Sheremetta and "do as he says." Mr. Vanderploeg stated, "I was given instructions by Constable Erickson that it was a crime scene that [sic] to follow the same footsteps as my partner and to get further instructions from the constable who was at the scene [...]." According to their testimony, Constable Sheremetta directed them to approach Mr. St. Arnaud from the east and to try not to disturb the scene any more than necessary. The attendants approached in single file and when leaving the area backtracked so as to minimally disturb the area. Both the ambulance attendants and RCMP members exited the area, which, according to the notebook entries of Constable Erickson and Constable Muraca, remained essentially undisturbed until Corporal Beach and Sergeant Doll arrived.
Mr. Hunsaker testified that he observed Constable Sheremetta walking around about twenty feet from Mr. St. Arnaud's body. Mr. Vanderploeg testified that he observed a lot of footsteps and packed snow around Mr. St. Arnaud.
The efforts of the officers at the soccer field, during the failed attempt to erect a tent, resulted in the contamination of the scene by various officers' footprints. A significant portion of the prints between an area containing an impression in the snow41 to some distance beyond where Mr. St. Arnaud's body lay was obliterated. This area was key to subsequent efforts to analyze the movements of Constable Sheremetta and Mr. St. Arnaud leading up to the fatal shooting. Unfortunately, due to the poor lighting, early photographs were too dark to clearly depict the scene or the footprints of the two men during the final moments of Mr. St. Arnaud's life.
Although the scene ended up being poorly preserved, I find that this was largely due to the deteriorating weather conditions and poor communication between the investigative team and Sergeant Doll and Corporal Beach as to the two versions that had been given as to what position Constable Sheremetta had been in when he shot Mr. St. Arnaud. They were only told of Constable Sheremetta's version at the 7:00 a.m. briefing and I am satisfied that absent the conflicting version their efforts were reasonable and that the ensuing damage to the integrity of the area around Mr. St. Arnaud's body was an unfortunate result of the adverse state of the weather.
During the course of this investigation Sergeant Krebs was asked if anyone had advised the Forensic Identification Section members of the alternate versions of Constable Sheremetta's shooting position, laying versus standing. He responded,
Ident was and is provided an overview briefing of events sufficient for them to conduct a scene examination without contaminating or prejudicing their views prior to entering a scene. In this way Ident can make an approach to a scene a [sic] properly record the evidence which is there rather than consciously or unconsciously collecting evidence to fit a version.
The problem with this explanation is that Sergeant Doll and Corporal Beach were sent out with only one version of events and thereby were not left free of all bias when collecting evidence. They were given one of two possible versions of the actual shooting, which accomplished exactly the scenario Sergeant Krebs claimed he was trying to avoid by not relating Constable Erickson's version of the shooting. It would be speculative to suggest that the forensic investigation would have yielded additional evidence if the forensic investigators had been briefed more fully. However, it seems reasonable that scene preservation may have been treated differently if Sergeant Doll and Corporal Beach were aware of the alternate version of the shooting and the potential significance of that area of the crime scene.
Finding: Sergeant Krebs provided the Forensic Identification Section members with only one of two possible versions of the shooting, which may have resulted in a failure to recognize the significance of that portion of the scene, which was ultimately contaminated by the footprints of other officers.
Forensic Examination of the Shooting Scene
At the site of the shooting, Sergeant Doll and Corporal Beach were able to secure a variety of exhibits and identify the paths taken by Constable Sheremetta and Mr. St. Arnaud except for that portion of the scene that was contaminated during the efforts to erect the tent. They catalogued the evidence recovered, which was later used to prepare the biomechanics and firearms expert reports. However, as noted in the Toronto Police Service's Report,42 no samples were taken of the blood in the snow beside Mr. St. Arnaud's body and as such there are no toxicological reports that identify it as being that of Mr. St. Arnaud. As a matter of best practice, this should have been done.
Sergeant Doll and Corporal MacLellan conducted an examination of the paths taken by Constable Sheremetta and Mr. St. Arnaud leading back to the curling rink where they seized another vial of drugs. They then backtracked to the mall and first examined the roof before moving to the interior of the mall. They again seized exhibits relevant to the break and enter and to Mr. St. Arnaud's flight from the mall including blood samples from a number of locations.
A few days later they were successful in obtaining an aeroplane to conduct an aerial survey of the scene including the mall and soccer field.
The evidence collected was used by both the biomechanics and firearms experts in the preparation of their reports.
Finding: The Forensic Identification Section failed to seize blood samples from the snow adjacent to Mr. St. Arnaud.
Impartiality of the Investigation
RCMP "E" Division policy requires that all deaths of persons in RCMP custody be investigated by a Major Crime Unit. In this case, the North District MCU from Prince George supplemented by members of "E" Division MCU from Vancouver investigated Mr. St. Arnaud's death. None of the MCU members had any substantive connection to Constable Sheremetta or to the Vanderhoof RCMP Detachment. However, Corporal MacLellan's involvement in the investigation must also be assessed in relation to this issue.
On March 21, 2007, the Commission and RCMP "E" Division implemented the Independent Observer Pilot Project (IOPP).43 It is designed to allow for a Commission observer to be involved at the outset of serious or highly sensitive investigations such as police-involved shootings in order to make observations about the impartiality of the investigation. The criteria applied in the IOPP are useful in assessing the impartiality of this investigation. In relation to Corporal MacLellan one aspect of the impartiality assessment stands out: "whether there are any actual or perceived conflicts of interest in terms of the members of the investigative team and those who are the subject of the investigation."
With this in mind and given that Corporal MacLellan was not a member of the MCU but a supervisor of Constable Sheremetta, in the normal course one would expect that his involvement should have been kept to a minimum.
Utilization of Corporal MacLellan in the Investigation
Corporal MacLellan spoke to Sergeant Krebs and, as a result, he was tasked with taking a duty to account statement44 from Constable Sheremetta.
Sergeant Krebs' notebook recorded that at 1:58 a.m. he spoke with the onsite supervisor, Corporal MacLellan, and received an update. He also recorded that he directed Corporal MacLellan to take a statement. As part of this Chair-initiated investigation he was asked to clarify his notebook entry and advised,
[...] my recall is that I was requesting that he speak with his member to provide a 'Duty to Account' being mindful of [the Criminal Code] and RCMP Act as anything provided by the member would/could jeopardize further contact by MCU members during the course of the investigation. I recall this instruction as it was inline [sic] with the additional instruction to seize his duty belt. Actions which should be taken sooner rather than later in investigations such as these. [sic]
In his testimony at the inquest, Corporal MacLellan indicated that he drove Constable Sheremetta back to the detachment with the intention of finding out exactly what had happened and what Constable Sheremetta's recollections of events were. He explained why someone from another detachment was not used to interview Constable Sheremetta.
I was available. There was no one else from another detachment present at the time and I think – my purpose in interviewing him I suppose was to ensure that we obtained a pure version of what the event was before his recollections might be tainted by other – other conversations or discussions he might have with someone else.
He also testified that he had spoken on the telephone with Sergeant Krebs whom he advised of his intention to interview Constable Sheremetta. Staff Sergeant Kowalewich noted that the reason he asked Corporal MacLellan to transport Constable Sheremetta back to the detachment was to obtain an accounting. I am not convinced that any of these members turned their minds to the availability of a member from another detachment. There is no record of any attempt to locate other members; however, according to Constable Erickson, Sergeant Grobmeier was at the scene prior to the commencement of the duty to account statement.
At approximately 2:11 a.m. on the morning of the shooting, Corporal MacLellan commenced taking a duty to account statement from Constable Sheremetta. The recorded portion of the statement failed to set out the parameters under which it was taken; however, it is clear from the record that some discussions took place prior to the videotaped interview. In Constable Sheremetta's second statement received by the RCMP on March 2, 2005, he spoke to this issue,
I spoke with the corporal and was advised that I was required to give an accounting of the night's events and that it would be taped. He made it very clear that this procedure was for employment purposes only with the RCMP and that I had to give an accounting of my actions. The statement was not warned and I was told it was just for police employment purposes.
The duty to account statement is a compulsory statement. This is an important distinction from that of a formal statement taken in the context of a criminal investigation.45 This is because, in general, compelled statements are not admissible in criminal court proceedings.46 It would have been preferable for this to have been clearly set forth at the outset of the interview.47 However, I am satisfied, based upon all the evidence, that Constable Sheremetta's first statement was indeed a duty to account statement in which he was compelled to give an accounting of what had transpired.
I accept Sergeant Krebs' rationale for believing that it was best to obtain such a statement at the earliest opportunity. However, it is not clear that any of the participants gave consideration to the perception of partiality that could arise from having one of Constable Sheremetta's supervisors, with whom there existed a working relationship, take his statement.
I also note that Corporal MacLellan's interview of Constable Erickson, the key witness to the shooting and his subordinate, did not start until 4:25 a.m., some twenty minutes before the arrival of Sergeant Krebs and at a time where a number of non-detachment members were present.
Corporal MacLellan asked leading questions48 in the interviews of both Constable Sheremetta and Constable Erickson. Although inappropriate, I find that the intent was to focus answers on the issues Corporal MacLellan wished to address and was not for any improper purpose. Furthermore, I am satisfied that the nature of the questioning did not affect the reliability of the statements.
Additionally, there are questions about Corporal MacLellan's preparation for the interview of Constable Sheremetta. The statements of Constable Sheremetta and Constable Erickson differed in one key area, the position from which Constable Sheremetta shot Mr. St. Arnaud. This difference was important because it would clearly have affected Constable Sheremetta's tactical vulnerability, a point which he specifically referred to in his statement. Not only would it mean that Constable Sheremetta's option to reposition was compromised but it would have also exposed him to a greater threat in that his ability to defend himself would have been significantly compromised. The discrepancy was also important because it could have called into question the accuracy or credibility of either Constable Sheremetta or Constable Erickson.
In the circumstances of this case it would have been more appropriate to interview Constable Erickson prior to interviewing Constable Sheremetta. Having this contradictory information in advance of Constable Sheremetta's statement would have enabled Corporal MacLellan to pose questions designed to clarify the differing versions during the interview of Constable Sheremetta.
These questions could still have been asked following Constable Erickson's interview but Corporal MacLellan made no effort to reconcile the discrepancy. In fact, during the course of this Chair-initiated complaint investigation Corporal MacLellan provided a statement in which he indicated that he did not view the discrepancy to be problematic given the lack of lighting and different perspectives of the members.
Finding: Sergeant Krebs should have determined the availability of qualified and experienced non-detachment members to take statements from Constables Sheremetta and Erickson.
Finding: Corporal MacLellan failed to adequately prepare for the interview of Constable Sheremetta by first interviewing Constable Erickson.
Finding: Corporal MacLellan failed to identify the purpose of his interview of Constable Sheremetta and in particular to define the statement as a duty to account statement.
Finding: Corporal MacLellan asked leading questions during the interviews of Constable Sheremetta and Constable Erickson which, although not appropriate, did not affect the reliability of the statements.
Finding: Corporal MacLellan failed to apprehend the importance of the contradictory evidence regarding Constable Sheremetta's shooting position.
Finding: Corporal MacLellan failed to re-interview Constable Sheremetta once he discovered the discrepancy between Constable Sheremetta's and Constable Erickson's versions of the shooting.
Despite the fact that he had a supervisory relationship with Constable Sheremetta and was not a member of the MCU, which could impact the perception of the impartiality of the investigation, Corporal MacLellan remained involved during the early stages of the investigation. His notes indicate that he was present at the first briefing of the MCU49 and the subsequent briefing by the Forensic Identification Section. During the days immediately following the shooting he spoke to a number of potential witnesses, seized exhibits and viewed a security video.
Corporal MacLellan even spoke with Constable Sheremetta to clarify how Mr. St. Arnaud exited the mall. This may have been how the Constable became aware that Mr. St. Arnaud was believed to have exited the mall via a back door and not by jumping off the roof as he had originally stated.50
Sergeant Krebs was asked to explain why Corporal MacLellan was used to assist with the investigation given that he was Constable Sheremetta's supervisor and was also assisting him with administrative matters. He responded that members of the MCU did not have a good relationship with Mr. St. Arnaud's family and that in order to obtain Ms. Gingera's recorder, a local member, Corporal MacLellan, was used. He did not mention using Corporal MacLellan in any other manner.
The scant references to Corporal MacLellan in the notes of the MCU members and the fact that Corporal MacLellan duplicated part of the investigation, specifically in reviewing the security tapes from the Tim Horton's restaurant the day after Sergeant Krebs had attended that same location to obtain a copy, lead me to conclude that Corporal MacLellan was involved on his own initiative. The records indicate that members of the MCU returned to Prince George at the end of each day. During their absence from Vanderhoof, calls from the public were received relating to the investigation into Mr. St. Arnaud's death. It appears that Corporal MacLellan took it upon himself to assist. This was far from a best practice and illustrates the need for stronger guidance to RCMP members not assigned to the investigating MCU, both in policy and direction from the investigative team.
Corporal MacLellan was not part of the investigative team that had the responsibility to investigate the circumstances of Mr. St. Arnaud's death. Furthermore, Corporal MacLellan's working relationship with Constable Sheremetta was another reason to minimize any active involvement in the investigation. His conduct had the potential to lead to the inference of a real or perceived bias.
Sergeant Krebs was clearly leading the MCU when the investigation began and should have ensured that detachment personnel were aware of the limitations on their roles in the investigation. There is no evidence to support that he limited the role of non-MCU members in the investigation, the need for which was enhanced by the absence of the MCU from Vanderhoof for significant periods of time.
Finding: Corporal MacLellan was improperly involved in the investigation of Mr. St. Arnaud's death.
Finding: Sergeant Krebs failed to exercise effective control over Corporal MacLellan's role in the investigation after initially using him to take Constable Sheremetta's duty to account statement.
As indicated above, the actions of both Constable Erickson and Corporal MacLellan negatively impacted the perception of impartiality of the investigation. This is not the first time that this issue has arisen in regards to a police involved homicide.
In response to a recommendation made by the Commission following the death of Mr. Ian Bush, the RCMP undertook to develop policy that provides direction to on-scene RCMP members in major cases involving investigation of police conduct, including the need to ensure real and perceived impartiality. This initiative began after Mr. St. Arnaud's death but the initial handling of this crime scene underscores the importance of providing guidance to first-response officers confronted with major cases involving the investigation of other officers. Nonethless, almost a full year has passed since the Commissioner made this commitment and the policy work should be identified as a priority.
Recommendation: The RCMP should act forthwith to implement policy that provides direction to on-scene RCMP members in major cases involving investigation of police conduct, i.e. situations where the police investigate the police, including the need to ensure real and perceived impartiality.
Use of Experts
Bloodstain Pattern Analysis Evidence
The problems identified with respect to the blood stain expert analysis, confirmed by an independent review conducted by the Toronto Police Service, are reviewed in Appendix K. The evidence set out in the expert report was contrary to the two RCMP witnesses as well as the apparent timing of events. The failure of Sergeant Krebs and the MCU to address the timeline discrepancy was a serious oversight. According to Sergeant Gallant, the contextual information provided was summarized as a man was shot during the course of a break-in investigation. Additionally, photographs of the scene were made available.
As part of this review Sergeant Krebs was asked whether Sergeant Gallant had been made aware of the timing issue. He responded that at a meeting on April 26, 2005, he had much discussion with Sergeant Gallant about the latter's conclusions relating to timing. He indicated that he accepted but did not agree with Sergeant Gallant's opinion but included it in the disclosure to the Crown Attorney.
Following the review of Sergeant Gallant's work by the Northwest Regional Forensic Identification Section, Staff Sergeant Forsythe mentioned various limiting factors in terms of providing a specific analysis including amongst other things the lack of information provided to Sergeant Gallant by the police. This latter point speaks to the limitation placed upon experts when insufficient data is provided. This was the responsibility of Sergeant Krebs. It is of note that when the RCMP commissioned the biomechanics report it provided far more comprehensive background information including the statements of both Constable Sheremetta and Constable Erickson.
Finding: Sergeant Krebs failed to provide sufficient background material to Sergeant Gallant to permit a thorough blood stain analysis.
The review of Sergeant Gallant's work, which was conducted by the Northwest Regional Forensic Identification Section51 made some useful observations in relation to the blood stain analysis. Staff Sergeant Jon Forsythe, the NCO in charge of Northwest Regional Forensic Identification Section, and Staff Sergeant Alain Richard, NCO in charge of Island District Forensic Identification Section, reviewed the reports of both Sergeant Gallant and Sergeant Geoff Ellis, who following the inquest had been assigned to prepare a second opinion on the blood stain evidence. They concluded that Sergeant Gallant failed to take into account all of the limiting factors and went beyond the scope of what was scientifically supported and that "[...] his opinions and conclusions are outside the normal standards of RCMP reporting [...]."
Finding: Sergeant Gallant made erroneous assumptions in arriving at conclusions not scientifically supported by the evidence.
Finding: Sergeant Gallant demonstrated tunnel vision by his reluctance to modify his conclusions when faced with additional information that called his original conclusions into question.
Given that Sergeant Gallant was removed from the Forensic Identification Section, I see no need to make recommendations in relation to him.
Use of Force Expert Report
The process for obtaining a use of force expert entailed a general call out for RCMP members on the expert roster. These members do not work full time as experts; rather, they are primarily assigned to other policing duties and provide expert opinions when time permits. This process meant that different members were engaged in discussions about taking the file only to later report that they did not have the time available to undertake the task. The first expert assigned was unable to complete the task because of illness and Sergeant Lee Chanin was ultimately chosen to complete it.
Constable Gillis was the first member contacted to provide an opinion. Despite indicating his availability as of January 18, 2005, he was not used to prepare the report. In response to questions posed by the Commission during this investigation, Constable Gillis indicated that although he initially agreed to work on the file he was later unable to do so because of the increased demands of his regularly assigned duties. He added that he neither reviewed any investigative material or other writings related to the matter nor provided any formal or informal opinions thereon. He stated that no person sought to change him as the subject matter expert and he never had any dealings with Sergeant Chanin, who eventually authored the report.
Corporal Anctil, who was described as the unofficial head of the use of force experts in "E" Division, was questioned as to his involvement in the selection process for the use of force expert. He advised that he was asked if he could assist but did not have the time and declined. He could not find any notes that might help specify when the request was made or what he did to assist in finding an expert. He explained that he forwarded an email to a group of approximately eight regular members who also provided expert opinions when time permits. Sergeant Chanin responded to the request and advised that he would be able to handle the matter but first wanted to speak with Corporal Anctil.
Neither member provided any notes relating to their conversation but Corporal Anctil recalled that he briefed Sergeant Chanin who felt that he was capable of preparing the expert opinion.
Although the subsequent request to Inspector Van De Walle and Chief Superintendent MacIntyre was not standard practice, it was apparently made to alert managers about the potential pitfalls of using Sergeant Chanin. Sergeant Krebs' request read,
This morning (3rd), Chanin called to say he was prepared to take on this investigation and has spoken with Cpl. Tim Anctil who will assist if necessary. Chanin wanted to inform, that although he has all of the necessary training and experience to be qualified as an expert as SME – Use of Force, he has not been qualified. Chanin has been qualified in the courts as an expert in other areas. Further to that Chanin has prepared only one expert report which was used in court however he was not required to give evidence on this report.
...
Chanin shares the same concern as myself in so far as two weeks down the road, management reads his name or discovers the aforementioned and raises concerns or requires us to start the process all over again with someone more qualified/recognized.
The appointment process raises two separate issues. First, the hit and miss approach to the appointment of use of force experts can lead to a perception that the investigators were expert shopping; that is to say trying to utilize an expert most likely to provide a favourable opinion. This problem could be disposed of by ensuring that the pool of experts is sufficiently large to meet the demands of major investigations and by establishing a selection process that does not identify potential experts only to have them decline to work on the file for various reasons, as happened here. It should also be noted that the time from identifying the need for a use of force expert to actually engaging one was five months.
The Commissioner's Final Report noted that the RCMP was working toward increasing the number of "permanent use of force experts" as well as establishing a program that will develop these experts and streamline the current process. This acknowledgement of the need to improve this system is a positive first step; however, the details of the program are insufficient to allow me to determine whether it will have the desired effect.
Second, the need to seek clearance from more senior officers to use Sergeant Chanin in the role of use of force expert also speaks to the inadequacy of the current system. Given that this case concerned a police-involved homicide with discrepancies in the eye-witness evidence, it warranted the use of an experienced expert with top of the line qualifications. Sergeant Chanin was acknowledged as lacking experience in the preparation of these types of reports and this case was not suitable for someone with such limited experience.
While it appears from the relevant material that there was no other expert available to handle the matter, this speaks to the inadequate numbers of experts and cannot be used to justify using a member who lacked the level of experience required for a serious case such as this.
Finding: The selection process for use of force experts gives rise to the possibility of real or perceived bias.
Finding: There was an excessive delay in appointing the use of force expert due to insufficient resources.
Finding: The RCMP failed to appoint a use of force expert with sufficient experience to handle a serious case dealing with a police-involved homicide.
Recommendation: The RCMP should train a sufficiently large pool of full-time use of force experts to ensure qualified and experienced experts are available in a timely fashion to deal with major cases.
Recommendation: The RCMP should streamline its appointment process for use of force experts and ensure transparency by establishing a set protocol for appointments.
The Investigational Timeline
A review of the investigation reveals that the brunt of the field investigation, including interviews and forensic seizures, was completed over the first 72 hours following the shooting.52 The bulk of physical evidence seized was forwarded for analysis (toxicological, etc.) within that 72-hour period.53
Expert opinions were sought in a timely fashion except that there was a significant delay of more than five months in obtaining a use of force expert. This type of expertise was an important area for the investigation and it should have been completed in a more expeditious manner. The RCMP's explanation for this cites resource shortfalls, which are now being addressed.
After conducting an independent review of the investigation, Inspector Degrand concluded that the investigation was carried out professionally.
On September 12, 2005, the RCMP submitted a Report to Crown Counsel to determine whether or not charges against Constable Sheremetta were appropriate.
Finding: The investigation was carried out in a timely manner except for the delay in selecting a use of force expert.
Major Case Management
The structure and primary responsibilities of the members of the team triangle are described above and in Appendix O. Inspector Hopkins was the interim Team Commander prior to Staff Sergeant Flath assuming that role. Sergeant Krebs was the Primary Investigator and Constable Huisman was the File Coordinator. Inspector Van De Walle, one of the Program Managers for the MCUs throughout British Columbia, was assigned to oversee the investigation. Additionally, Superintendent Killaly occupied a position above Inspector Van De Walle and, although he had less direct involvement than Inspector Van De Walle, he exerted some influence over Sergeant Krebs. Neither Superintendent Killaly's nor Inspector Van De Walle's involvement was captured in the Major Case Management policy.
None of the members involved in this investigation were accredited as called for in RCMP policy. The RCMP has explained that at the time of the investigation, "E" Division certification procedures were less than a year old and the training process was ongoing. This meant that a full complement of accredited individuals was not yet available to conduct investigations. That shortfall has now been remedied and there are more accredited officers in "E" Division than investigative positions, which should ensure adequate availability in future cases.
Inspector Hopkins was the interim Team Commander and was involved in meetings from the outset of the investigation and for months thereafter, long after Staff Sergeant Flath, his successor, had become involved in the investigation.
Staff Sergeant Flath returned from leave and began attending briefings on January 6, 2005. He noted that prior to that time Inspector Van De Walle had dealt directly with Sergeant Krebs, who he believed was the acting Team Commander during his absence. This is contrary to the view of others who identified Inspector Hopkins as the interim Team Commander. However, Staff Sergeant Flath only advised Inspector Van De Walle and Inspector Hopkins that he was taking over as Team Commander on February 16, 2005. Staff Sergeant Flath's notes reveal that he was being actively updated on the status of the investigation but do not demonstrate that he had "overall control, responsibility and accountability for the direction speed and flow of the case [...]."54
Inspector Van De Walle was actively involved in the investigation. He was regularly briefed, maintained contact with Ms. Young and Ms. Gingera and assisted in obtaining a use of force expert.
Superintendent Killaly was also periodically briefed on this file and eventually authorized the biomechanics report. As noted above, he also had discussions about the type of statement that should be sought from Constable Sheremetta. He later explained that Sergeant Krebs was not seeking his permission as to how to conduct the investigation but only his opinion on that point. However, I note that after their discussions, Sergeant Krebs decided to forestall obtaining a statement and to again review the matter with legal counsel who had originally concurred with his desire to obtain a warned statement from Constable Sheremetta. In the end, Constable Sheremetta did not consent to provide an additional statement.
The Major Case Management approach was not utilized effectively in this investigation. The leadership expected by the Team Commander was not exhibited and Sergeant Krebs was largely left to his own devices in managing areas of the investigation that should have been the Team Commander's responsibility, in effect, assuming dual roles. One of the benefits of utilizing the command triangle is having multiple players with clearly defined roles performing checks and balances.
It appears that Inspector Van De Walle also filled the void left by the lack of leadership from the Team Commander. However, the level of his involvement in the investigation seems to exceed the role that he was originally assigned. This may have been a response to the weakness in the command triangle but it does little for the perception of the investigation when the roles described in RCMP operational policy are unofficially redistributed.
The record keeping on this file by senior members was also lacking. In the case of Inspector Hopkins and Superintendent Killaly, no records were kept despite a clear enunciation in policy that "[t]he decision-making processes within [Major Case Management] must be preserved. Individual managers, supervisors and investigators must make complete notes documenting their participation, rationale, time, direction and decisions."55
The failure to adhere to the Major Case Management model undoubtedly contributed to the inadequacies identified in this investigation.
It is important to note that the Major Case Management model was quite new at the time of this investigation and the divisional infrastructure was clearly not sufficiently advanced to support its employment in this instance. I contrast this investigation with that of the investigation into the death of Mr. Ian Bush, who died on October 29, 2005. That investigation was also carried out by the North District MCU. I found that investigation to have been highly professional and to exemplify the best practices for major crime investigations. Given the improvement in the quality of that later investigation, which was conducted after the Major Case Management model was more fully implemented, I see no need to make recommendations on this issue.
Findings: The Major Case Management model was not properly applied in this investigation:
- the team members were not accredited, as required by policy;
- Inspector Hopkins and Staff Sergeant Flath in their role as Team Commander did not exercise overall control or assume responsibility and accountability for the direction, speed and flow of the case, as required by policy;
- after using Corporal MacLellan to assist in the investigation, in a limited capacity, Sergeant Krebs failed to restrict Corporal MacLellan's subsequent involvement;
- Inspector Hopkins and Superintendent Killaly failed to keep notes of their involvement, as required by policy;
- Superintendent Killaly's and Inspector Van De Walle's involvement in the investigation was not clearly defined by the Major Case Management policy and helped create ambiguity as to the operational line management responsibility for the investigation; and
- the investigative team failed to conduct a critical debrief, as required by policy.
Recommendation: The Major Case Management policy should be modified to clarify the distinction between those managers and supervisors providing operational decision-making and guidance and those providing administrative support.
On February 28, 2007, Inspector Degrand who conducted the Independent Officer Review of the investigation completed his concluding report. Amongst other things, he found that the investigation into the shooting was "very thorough". He also made two recommendations:
I recommend that Consideration should be given by the Division and H.Q. policy centers to examining this section of Operational Manual Policy (OM re-write, 4.1) and the possible modification of the same to reflect a requirement to carry a C.E.W. [conducted energy weapon]56 (Taser) while on general policing and like duties when a member has been trained and the same is available to them.
...
That consideration be given to invoking a practice of follow-up review by RCMP witnesses rendering opinion evidence when it becomes clear to the investigator that the opinion being rendered is in-consistent with the fact set present in the case at hand. That such a review entail, if necessary, the redrafting of a second, follow-up report, outlining the change in fact set being reviewed and subsequent modification of opinion, if that is the case, by the witness. This would enable judicial bodies to be aware of both the original opinion, subsequent re-examination based upon any identified issues, and subsequent opinions and allow for the witness to maintain a higher level of credibility than to be challenged on the witness stand and modify their opinions at that point.
This latter point is a reasonable approach to address the inadequacies in relaying information to experts, as was the case with Sergeant Gallant.
The first recommendation, dealing with mandatory arming of trained members with a CEW, if one is available, is an issue that bears no relation to the issues in this file. Inspector Degrand commented that Constable Sheremetta chose not to carry a CEW that evening even though he was trained and one was available. However, he also acknowledged that the CEW was not a suitable use of force option in cases where lethal force is appropriate without a back-up officer being present and able to use lethal force if needed. This case was not an appropriate one for the RCMP to be promoting increased arming of members with a CEW.
As previously noted the Toronto Police Service conducted its own review of the RCMP investigation and identified some of the same issues noted above. Some of the recommendations made in that report are relevant to my findings and I have adopted one of those recommendations, as modified below.
Recommendation: The RCMP should ensure that the primary investigators involved in police investigating police conduct brief and continually update the forensic identification officers that are examining the scene to ensure that they are aware of all relevant information to assist in their examination.
At the time that Constable Sheremetta entered into his pursuit of Mr. St. Arnaud, he was subject to the duty provisions of the RCMP Act, in particular paragraph 18(a),
18. It is the duty of members who are peace officers, subject to the orders of the Commissioner,
(a) to perform all duties that are assigned to peace officers in relation to the preservation of the peace, the prevention of crime and of offences against the laws of Canada and the laws in force in any province in which they may be employed, and the apprehension of criminals and offenders and others who may be lawfully taken into custody...
Both constables responded to and were investigating a possible break and enter. Mr. St. Arnaud was first seen inside the pharmacy and then fleeing toward the rear of the mall where Constable Sheremetta was positioned. Constable Sheremetta witnessed Mr. St. Arnaud running from the rear of the mall and attempted to apprehend him. The facts establish that the officers were lawfully performing their duties when they commenced the break and enter investigation and that there were reasonable grounds for Constable Sheremetta to detain Mr. St. Arnaud.
Finding: The members entered into their interactions with Mr. St. Arnaud lawfully and were duty-bound to do so.
I now turn to an analysis of Constable Sheremetta's conduct in relation to the shooting of Mr. St. Arnaud. My preceding review of the RCMP investigation into Mr. St. Arnaud's death provides an outline of the evidence, which I am satisfied should be considered in assessing that conduct, as well as explaining which evidence I do not accept as reliable or relevant. I will now review the resulting evidentiary record against the applicable legislation and policy.
Subsection 25(1) of the Criminal Code authorizes a police officer who is acting in the administration or enforcement of the law to use as much force as is necessary for that purpose. Section 34(2) of the Criminal Code authorizes any person who is unlawfully assaulted to use force that causes death or grievous bodily harm in self-defence to repel the assault. To rely on this protection, the person must have a reasonable apprehension of death or grievous bodily harm and must also believe that he cannot otherwise preserve himself from death or grievous bodily harm.
RCMP members are trained to use the Incident Management/Intervention Model (IM/IM)57 as an aid to determine both how to intervene in incidents and when force may be necessary. There are seven underlying principles upon which the IM/IM is based,
- The primary objective of any intervention is public safety.
- Police officer safety is essential to public safety.
- The intervention model must always be applied in the context of a careful assessment of risk.
- Risk assessment must be taken into account: the likelihood and extent of life loss, injury and damage to property.
- Risk assessment is a continuous process and risk management must evolve as situations change.
- The best strategy is the least intervention necessary to manage risk.
- The best intervention causes the least harm or damage.58
It is incumbent upon the member to perform a risk assessment, first determining which of the five behaviour classifications (cooperative, non-cooperative, resistant, combative and potential to cause grievous bodily harm or death) the subject's actions fall into. Consideration must also be given to the situational factors specific to each incident. These include weather conditions, subject size in relation to the member, presence of weapons, number of subjects and of police, as well as a host of other incident-specific considerations.
The IM/IM sets out various response or intervention options specific to the member's determination of subject behaviour in conjunction with the assessment of the situational factors. The subject behaviour is characterized as being co-operative, non-cooperative, resistant, combative or as displaying the potential to cause death or grievous bodily harm. Intervention options include officer presence, verbal intervention, empty hand control, intermediate devices, impact weapons, lethal force and tactical repositioning. RCMP members are trained to utilize one level of intervention higher than the demonstrated resistance level of the person they are dealing with.
In this case, Constable Sheremetta's statement indicates that he was aware of the following situational factors. These factors are the starting point of the IM/IM analysis. He knew that an alarm had been activated at the pharmacy. En route to the scene he was advised that the alarm originated in the dispensary area and upon arrival learned that there was indeed at least one male suspect still within the pharmacy. Additionally, environmental factors were identified including the icy/slippery conditions.
Constable Sheremetta's duty to account statement also revealed his perception of the risk factors at play that night. He believed that Mr. St. Arnaud had jumped off the roof of the mall.59 Mr. St. Arnaud would not comply with his commands and continued to flee after being ordered to stop. He related that Mr. St. Arnaud was taller than he was at about six feet tall.60
Constable Sheremetta related that as the pursuit unfolded, Mr. St. Arnaud repeatedly looked back at him and continued to ignore his commands to stop. Most importantly, he observed Mr. St. Arnaud running one-handed, in other words keeping his right hand in his pocket. Constable Sheremetta expressed concern about not knowing where his back-up, Constable Erickson, was and during the final portions of the interaction he was keenly aware that he had to deal with Mr. St. Arnaud alone, at night-in the dark, on an isolated soccer field.
The accounts of Constable Sheremetta and Constable Erickson, as the only two witnesses to the shooting, must be examined in order to determine the actual events. First, as I have previously stated, eye-witness accounts of events are not always reliable. In this case, I am aware that Constable Sheremetta's perceptions were likely affected by his heightened state of anxiety. He misperceived Mr. St. Arnaud as having jumped off the roof of the mall and he misjudged Mr. St. Arnaud to be about six feet tall when in fact he was two and one-half inches shorter.
Second, Constable Erickson's recollection of events was not perfect either. She stated that she heard only two shots and saw only two muzzle flashes.61 While this aspect of her observations proved to be incorrect, she recounted Mr. St. Arnaud's approach upon Constable Sheremetta in much the same way as Mr. Klassen and Constable Sheremetta himself. The lighting from the street was limited and she acknowledged that she could not identify the gun in Constable Sheremetta's hand. However, she did notice the white bag carried by Mr. St. Arnaud. Additionally, she spoke with great clarity as to Constable Sheremetta's position at the moment of the shooting, describing him as standing with legs apart and arms extended in front of him. All of this was possible because, after she passed the tennis court, she had an unobstructed view of the participants who were located in front and to the left of where she was driving.
Third, Constable Erickson recounted seeing Mr. St. Arnaud fall to the ground after the final shot. I conclude that Constable Erickson heard and saw the third shot. This would mean that she observed one of the two preceding shots that were described as being shot in quick succession, which may explain why she did not differentiate the two shots.
While it initially looked like Mr. St. Arnaud was going to surrender, this quickly changed when he lowered his hands and began charging toward Constable Sheremetta. Mr. St. Arnaud ignored Constable Sheremetta's shouted commands to stop and get down on his knees and responded by telling Constable Sheremetta that "[...] you're going to have to shoot me mother fucker [...]." Constable Sheremetta also observed that Mr. St. Arnaud's face was covered in blood. Constable Sheremetta then fell down.
The recountings of the many witnesses interviewed reflect the frailties of human powers of observation and recollection. Some of their testimony, given without any improper motive, is contradicted by other witnesses or the physical evidence. I am satisfied that Constable Sheremetta fell down, based on his assertion in his first statement and the depression in the snow identified in the forensic investigation of Sergeant Doll and Corporal Beach. I also note that the ground was universally described as being slippery and that Constable Sheremetta had slipped and almost fallen after exiting his police vehicle and Mr. St. Arnaud had fallen to the ground during the pursuit. The observation of the ambulance attendants supports the proposition that Constable Sheremetta fell. They observed a cut on his left hand, which may have been caused by having scraped it on the icy snow. The only time that Constable Sheremetta stated that he fell was immediately prior to the shooting. I, therefore, find that Constable Sheremetta having fallen down regained his feet and fired from a standing position as observed by Constable Erickson.
From the early stages of their interaction Mr. St. Arnaud refused to comply with the commands issued by Constable Sheremetta. By the time that Mr. St. Arnaud began approaching Constable Sheremetta he was at least combative. I find that his words and actions demonstrated his intent to assault Constable Sheremetta and escape custody. The key issue is whether Mr. St. Arnaud posed a threat of grievous bodily harm or death. The critical observation noted by Constable Sheremetta was Mr. St. Arnaud's repeated placement of his hands in his pocket. I find that based upon the evidence in its entirety, these actions would be wholly consistent with Mr. St. Arnaud trying to safeguard the drugs that he had stolen from the pharmacy.62
It must also be remembered that Mr. St. Arnaud's blood alcohol level and various witnesses support a finding that he suffered from a significant degree of intoxication. Furthermore, Mr. St. Arnaud had already instigated one physical altercation earlier in the evening with an individual significantly larger than he was. In fact, the bar doorman who broke up the fight estimated that the other combatant outweighed Mr. St. Arnaud by a hundred pounds. While this information was not known to Constable Sheremetta, it is of assistance in assessing the likelihood of the events unfolding as described by him.
The factors relied upon by Constable Sheremetta included the fact that during the final seconds he was alone and unsure of his partner's location. He perceived Mr. St. Arnaud to be bigger than he was.63 The lighting was poor and the conditions slippery. Mr. St. Arnaud's utterances and facial expressions also demonstrated aggression and his words could be perceived as meaning that he contemplated a fight that would entail grievous bodily harm or death.64 Constable Sheremetta's risk assessment was heightened by the uncertainty of Mr. St. Arnaud's purpose in putting his hand in his pocket and he feared that he might have a hidden weapon. This is the key factor that elevates the risk assessment to the highest levels.65 During his duty to account statement, Constable Sheremetta stated that this caused him to fear for his life. By all accounts Mr. St. Arnaud advanced upon Constable Sheremetta while the latter had his firearm pointed directly at him.
Lastly, at the point he was shot, Mr. St. Arnaud was only five feet away from Constable Sheremetta.
This highlights the dynamic nature of this incident. The five-foot distance between Mr. St. Arnaud and Constable Sheremetta could have been covered in a fraction of a second. The time frame from Mr. St. Arnaud coming to a stop, appearing to surrender and then charging back at Constable Sheremetta was estimated by the biomechanics evidence to be in the range of five to eight seconds. This did not leave time for sober second thought. Constable Sheremetta was called upon to make a decision in that instant.
It is important to note that this case is like many faced by peace officers performing their duties, namely a dynamic event that required decisive action on the part of the member. There has been much judicial commentary on this point and it certainly applies in this case.
It is one thing to have the time in a trial over several days to reconstruct and examine the events which took place on the evening of August 14th. It is another to be a policeman in the middle of an emergency charged with a duty to take action and with precious little time to minutely dissect the significance of the events, or to reflect calmly upon the decisions to be taken.66
Having regard to all the evidence, I find Constable Sheremetta's apprehension that Mr. St. Arnaud posed a threat of grievous bodily harm or death to be reasonable.
According to the IM/IM, in these circumstances the intervention options available included tactical repositioning and verbal intervention, both of which are available throughout any encounter, as well as the use of lethal force. Constable Sheremetta attempted verbal intervention throughout the incident without effect.67
He tried to reposition by backing away from Mr. St. Arnaud but fell. Lastly, as Mr. St. Arnaud closed in on him, Constable Sheremetta used lethal force, firing three shots at Mr. St. Arnaud. This response was reasonable given the perceived threat.
Finding: Constable Sheremetta shot Mr. St. Arnaud in self-defence after reasonably perceiving that Mr. St. Arnaud posed a threat of grievous bodily harm or death and believing that he could not otherwise preserve himself from grievous bodily harm or death other than by using deadly force.
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
39 Her notes read as though she immediately began recording what she remembered of the incident and also made notes of any observations relating to scene security as they arose.
40 For example, Sergeant Grobmeier was on the scene at an early stage but there is no clear record of what duties he assumed.
41 This impression was considered by investigators to be consistent with the location and marks that what would be expected if Constable Sheremetta had fallen, as he indicated in his duty to account statement.
42 On January 15, 2008 the RCMP requested the Toronto Police Service to conduct an external independent review of the death of Mr. St. Arnaud and to comment on whether a thorough, professional and unbiased investigation had been conducted by the RCMP.
43 A description of the project may be found in Appendix P. The project is now a full-time program within "E" Division and may be expanded to include other divisions.
44 For an explanation of duty to account statements, see Appendix I.
45 Although the distinction did not prove to be of any significance in this particular investigation, as a matter of practice it is an important issue.
46 See R. v. White, [1999] 2 S.C.R. 417.
47 RCMP policy, Operational Manual II.7.H.2., stated, "Record the entire interview including all warnings and acknowledgements."
48 Leading questions are questions that tend to suggest a particular answer.
49 Staff Sergeant Kowalewich was also present.
50 Constable Sheremetta indicated in his second statement that he had now been advised that Mr. St. Arnaud likely exited through the door.
51 Referred to in Appendix K.
52 The initial phase of a major case investigation (usually 72 hours) is identified in policy as being critical, Operational Manual 25.3.4.1.
53 For a condensed timeline of investigative steps, see Appendix Q.
54 Operational Manual 25.3.2.2.3.
55 Operational Manual 25.3.9.2.
56 The term conducted energy weapon (CEW) is used by the RCMP to describe a group of weapons that may incapacitate or cause pain to a subject by discharging an electric shock. These devices are also known collectively as conducted energy devices or stun guns. The Taser is a brand name for the CEW used by the RCMP.
57 This model is a comprehensive guide to aid members in identifying appropriate intervention techniques when dealing with any type of civilian interaction. A graphical depiction of the model is contained in Appendix R.
58 This was also referred to in RCMP policy, Operational Manual III.2.C.
59 Although this assumption was later determined to be erroneous, I am satisfied that Constable Sheremetta held this belief during the pursuit of Mr. St. Arnaud, especially given that he immediately radioed this observation to Constable Erickson.
60 In fact, Mr. St. Arnaud was five feet nine and one-half inches tall, an inch shorter than Constable Sheremetta, at five feet ten and one-half inches tall. I accept that this was Constable Sheremetta's perception, one that I attribute to his heightened fear as the event unfolded. Constable Sheremetta provided this opinion shortly after the shooting during the duty to account statement and I am satisfied that he held that belief during his pursuit of Mr. St. Arnaud.
61 The next closest observer, Mr. Klassen, also maintained that he only heard two shots.
62 The types of drugs found upon Mr. St. Arnaud speak to the lack of sophistication and planning of the break-in. The drugs included medication designed to treat high blood pressure and schizophrenia. This is consistent with the spontaneity of this crime.
63 RCMP members are trained to apply AIM when utilizing force. AIM is an acronym for Ability/Intent/Means. Before utilizing force, a member should be able to identify all three elements of AIM. Constable Sheremetta's observations relating to Mr. St. Arnaud's stature and physical effort, such as jumping off of the roof, supported his assessment that Mr. St. Arnaud had the "ability" to harm him. While these observations were ultimately proven to be inaccurate, I am satisfied that Mr. St. Arnaud posed an actual physical threat and that Constable Sheremetta believed that he did.
64 These factors are indicative of Mr. St. Arnaud's "intent" to fight Constable Sheremetta.
65 These observations led Constable Sheremetta to believe that Mr. St. Arnaud was carrying a weapon and thereby had the "means" to inflict grievous bodily harm or death. The critical issue is the reasonableness of Constable Sheremetta's belief. Mr. St. Arnaud's actions could reasonably lead an objective observer to conclude that he had a hidden weapon, although this proved not to be the case.
66 Chartier v. Greaves, [2001] O.J. No. 634 at para. 64 (Ont. Sup. Ct.)(QL).
67 The effect may have been diminished by Constable Sheremetta's delivery. By his own description he appears to have been yelling in panic rather than in a commanding tone.