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

RCMP Act Paragraph 45.42(3)(a)

Version Vetted for posting

March 8, 2007

Overview

On August 7, 2004, Mr. I complained to the RCMP that a man had assaulted him and then driven away while impaired. Mr. I provided the licence plate number of the vehicle that his alleged assailant was driving. As a result, Corporal B and Constable C of the Shediac RCMP Detachment in New Brunswick arrested the complainant, Mr. A, who was driving the subject vehicle. A brief physical altercation ensued during which Corporal B applied a Taser to Mr. A. Mr. A was transported to the Shediac RCMP Detachment and charged with impaired driving, refusing to provide a breath sample, resisting arrest, assault, assaulting a peace officer, and uttering threats. Mr. A was later released on an undertaking without conditions. At trial, a stay of proceedings was entered.

On February 7, 2006, Mr. A complained about the conduct of Corporal B, Constable C, Inspector D and Inspector E. In his complaint, Mr. A essentially alleges that: Corporal B used excessive force during his arrest by tasering him three times and kicking him in the face, ribs and arms; he was kept in police custody needlessly; and Inspectors D and E took no action to correct the situation.

As required by the RCMP Act, the complaint was forwarded to the RCMP for investigation. Following its investigation, the RCMP provided Mr. A with a letter of disposition dated August 22, 2006 that did not support Mr. A's allegations.

The Commission received Mr. A's request for review on November 30, 2006. The Commission received the material related to this complaint from the RCMP on December 7, 2006.

For the reasons outlined below, the evidence leads me to conclude that although it was initially reasonable for Corporal B to apply the Taser to Mr. A, he used improper force in applying the Taser to Mr. A two subsequent times and in kicking him.

Commission's Review of the Complaint

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

Having now reviewed Mr. A's complaint and the RCMP's letter of disposition, I have prepared this report, which contains my findings with respect to the complaint. A detailed and very careful examination has been undertaken of all the relevant materials related to this file. This has included a review of the RCMP's investigational file, tapes of the criminal trial regarding this incident, the judgment rendered after trial, the relevant legislation and policy, and a review of the RCMP's public complaint file.

First Allegation: Corporal B used excessive force during Mr. A's arrest by tasering him three times and kicking him in the face, ribs and arms.

In his complaint, Mr. A stated that after he was stopped by Corporal B and Constable C, Corporal B told him to place his hands on his truck. Mr. A stated that he asked three times what he did, to which Corporal B replied "try this" and tasered him. According to Mr. A, he fell to the ground and Corporal B kicked him in the face, ribs, shoulder and arm, and tasered him another two times.

Mr. A refused to provide a statement to the public complaint investigator. However, at trial he stated that he had only one beer prior to his interaction with the members. He explained that as the police approached him, he pulled his vehicle into a driveway, slid out of the truck and stood next to its open door. Mr. A related that Corporal B approached him with his right hand already on his back, and told him two to three times to put his hands on the truck. Mr. A stated that he did not and instead asked what was going on while moving his hands around. According to Mr. A, Corporal B stated, "this is what's going on," pulled his hand from behind his back and deployed the Taser, hitting Mr. A in the stomach. Mr. A explained that he felt pain, shook all over and fell, at which point Corporal B kicked him in the ribs and tasered him a second time, without warning. He recalled that he rolled to his back, at which point Corporal B yelled, "Do you want some more? Roll on your stomach!" and again deployed the Taser. At that point, Mr. A stated that he heard someone yell at Corporal B, who then argued with the individual prior to grabbing Mr. A's arm, kneeling on him and separating his shoulder, and telling him to put his arms behind his back.

Mr. A related that he was arrested for impaired driving once handcuffed, and Corporal B threw him into a police vehicle where Constable C read him his rights. Mr. A stated that he complained of his handcuffs being too tight and was transported to the detachment and taken out of the vehicle, where Corporal B pulled the Taser probe out of his body. Mr. A was not taken to the hospital for medical attention although he stated that he was confused and disoriented and that the Taser caused him to vomit.

In his statement to the public complaint investigator, Corporal B explained that on August 7, 2004, he heard a call on the radio to the effect that Mr. I had made a complaint of assault and that he had stated that the man who assaulted him was drunk and was wearing a cowboy hat, and had described him further. The alleged assault consisted of a shove. Corporal B related that Mr.  I also provided the licence plate number of the truck that his alleged assailant was driving, and the plate number matched that of a vehicle belonging to Mr. A. Corporal B stated that at that point, he determined that the alleged assailant was likely Mr. A. According to Corporal B, he had prior knowledge of Mr. A, a former RCMP member, and described him as having a reputation of being a "street fighter" and a "bully" while drinking, and as having a drinking problem.

Corporal B related that he and Constable C, in separate cars, began a patrol to find the subject vehicle. They met the subject vehicle, driven by Mr. A, backing out of a driveway. Corporal B stated that both he and Constable C stopped their vehicles behind the truck, preventing it from getting out of the driveway. According to Corporal B, he walked up to the vehicle, where Mr. A told him that he had not been driving. Corporal B observed that Mr. A smelled strongly of alcohol, that his movements were slow and decisive, and that his eyes were "more than bloodshot," which he described as being typical of an alcoholic. Corporal B also observed a large amount of liquor containers in the vehicle, some open, and stated that he had no doubt that Mr. A was "plastered." There was another male later identified as Mr. G. in the passenger seat and a third male later identified as Mr. H in the back seat of the truck.

Corporal B related that he told Mr. A that he was under arrest for impaired driving, to which Mr. A replied: "Tu m'as pas vu driver." He stated that he tried to pull Mr. A out of the vehicle twice, telling him that he had to accompany the members, but Mr. A pushed him away both times. Corporal B explained that Mr. A was leaning into the truck and resisting being pulled out by extending his leg, and he was unable to get any leverage. He also explained that Mr. A was sweaty, and his hand slipped. Corporal B noted that Mr. A is a large man, weighing approximately 280 pounds. He stated, however, that while other members had said, "if you get him... be careful he'll fight you," he did not think that Mr. A would fight. Corporal B observed, "I don't think he will, you know fight I think he puts out that image and guys are afraid to push him to the next level."

At that point, Corporal B stated that he turned to get the Taser from Constable C, intending to tell Mr. A that if he did not get out of the truck he would be tasered. However, Corporal B stated that when he turned around Mr. A was "right there." Corporal B explained:

Oh, yeah and he got out and aggressive. He was, he was ready to scrap now. He was stood up, y a sorti du char là and his knees were bent, ok? In a fighting, combative, you know [...]. Here is a guy that I know he's hammered drunk and I know from his reputation that when he's drunk, he's aggressive and that he'd fight anybody [...]. I know the guy and I know he's capable. I'm gonna get in a struggle with this guy, so we're at the edge of, ... uh... of a ditch here to, there's a ditch right there where we are. If we get into a struggle and fall down that ditch, God knows what could happen. I mean I'm capable of taking care of myself to a certain limit, but I'm not gonna get in a fight with a guy that's 80 pounds my, to, to it's an'...and who's a scrapper. I'm just not gonna do that, especially if I got other means available to me to, to help protect myself or, or help to, to place and control him.

Corporal B stated that he was approximately 10 feet away from Mr. A at that time, and he was shocked to see him out of the vehicle. Corporal B explained that he did not give Mr. A a warning; rather, he deployed the Taser in probe mode and the probes entered what he believed was Mr. A's chest or stomach area. He explained that Mr. A dropped between the open door of the vehicle and the vehicle, landing partially on the seat and then falling to the ground. Corporal B stated that at this point both he and Constable C were yelling for Mr. A to put his hands behind his back. He noted that Mr. A was a "fighter and a scrapper," "capable of taking care of himself" and knew of RCMP weapons and how to remove a gun from its holster. Corporal B also noted that he was aware that Mr. A had a reputation for violence and intimidation and was a drug user. Corporal B stated that he did not issue a warning as, to his knowledge Mr. A was intoxicated and had already assaulted someone, his passengers were intoxicated, Mr. A surprised him by being out of the vehicle, and Mr. A was resistant.

According to Corporal B, Mr.  A rose to his hands and knees as soon as the five-second Taser cycle ended. Corporal B stated that he had never seen anyone rise immediately after being tasered. Corporal B explained that he and Constable C yelled at Mr. A to stay down or he would "get it again," but Mr. A remained on his hands and knees and then put his hand up on the rocker panel of the truck. He stated that he then tasered Mr. A again for the full five-second cycle, and Constable C yelled at him to place his hands behind his back. Constable B related that Mr. A then complied and put his hands behind his back, and Constable C was able to apply the first handcuff. Constable B stated that Mr. A then pulled his left hand away, so he put his knee in the area of Mr. A's shoulder blade, telling him to "give it up." He explained that Mr. A was "still resisting, still wasn't complying," and that he told Mr. A that he would be tasered again. Corporal B stated that he again deployed the Taser, but shut it off prior to the end of the cycle as he observed Mr. A's hand come back. He explained that Constable C then applied the second handcuff. Corporal B denied kicking Mr. A.

Corporal B stated that he and Constable C then took Mr. A to one of the police vehicles, where he refused to enter it. According to Corporal B, he told Mr. A that if he did not enter the car, he would be tasered again. Corporal B reiterated that Mr. A is a very big man and that there was no way short of physical force to get him in the vehicle. Mr. A then entered the vehicle.

Constable C's statement to the public complaint investigator was similar in all material respects to that of Corporal B. She added, however, that when she saw Mr. A on the day of his release, she observed the injuries where the probes had made contact with his skin as well as other bruising that could have occurred when Mr. A fell upon being tasered. Constable C stated that there was no bruising on Mr. A's face. Constable C also noted that while she saw that Mr. A's eyes were red when he was in his vehicle, she only smelled alcohol when she was on the ground with him attempting to apply the handcuffs. Constable C stated that in her opinion, Mr. A was impaired. In addition, Constable C stated that she did not see Mr. A exit the vehicle, but she did see him standing outside the vehicle.

The breathalyser technician who dealt with Mr. A noted that his eyes were bloodshot, his face was red, he was quite talkative, and he smelled strongly of liquor.

The continuation report completed by Constable C and Corporal B at the time of the incident was consistent with the members' statements. It should be noted that the members' testimony at trial was also consistent with their statements to the public complaint investigator; however, Corporal B divulged additional details to the public complaint investigator regarding his prior knowledge of Mr. A. During Mr. A's trial, such evidence was not led, as it would have been unduly prejudicial in the context of a criminal trial.

Mr. F, a bystander, stated at Mr. A's trial that he heard Corporal B talking to Mr. A for several minutes while Mr. A was inside his vehicle. Mr. F stated that he heard a shot, and then saw Mr. A face-down on the ground. According to Mr. F, he then walked over to the scene and was told by Corporal B to leave. Mr. F also stated that the members were asking Mr. A to put his hands behind his back, and that he heard Corporal B say, "Do you want some more? Put your hands behind your back or you're going to get some more."

Mr. G, who was with Mr. A in his vehicle, stated in his testimony at trial that Mr. A had only consumed one beer the morning of the incident. Mr. G stated that the members did not speak with Mr. A while Mr. A was still in the vehicle and did not say anything as they approached the vehicle. According to Mr. G, Mr. A opened the vehicle door and, once outside the vehicle, asked what was going on with his palms facing upwards near his shoulders, and then Mr. G heard a "shot." He explained that he heard Mr. A screaming for the members to stop, and that he also heard another shot and more screams. Mr. G stated that he had consumed four to five beers before meeting Mr. A at approximately 8 a.m., and that he consumed a further one to two beers after going to the liquor store with Mr. A at approximately 8:30 a.m.

Mr. H, Mr. A's second passenger, also stated that Mr. A had only consumed one beer. Mr. H explained that as the members approached the vehicle, Mr. A exited the vehicle and stood next to the door, asking why the members had stopped him. Mr. H related that he saw Mr. A speaking to the members with his hands in the air, and then he heard a bang and saw Mr. A face down on the ground attempting to get up and saying not to shoot him again. Mr. H recalled hearing screaming and yelling but did not know who was screaming or what they were saying. Mr. H stated that he had only had one drink on the day of the incident. Mr. H also stated that he, G and Mr. A had spoken about their testimony prior to the trial, and that he spoke with Mr. A daily.

Policy Regarding the Use of Force

The Criminal Code empowers police officers to use reasonable force in the administration and enforcement of the law. In addition, the CAPRA problem solving model and the RCMP's Incident Management/Intervention Model (IM/IM) require that members assess risk and continually assess the appropriateness of intervening, in addition to their level of intervention. The IM/IM provides that the best strategy is the least intervention necessary to manage risk and that the best intervention causes the least harm or damage. RCMP policy allows for the use of intermediate devices in situations where the subject is resistant. The RCMP's policy regarding conducted energy weapons (CEW) at the time of this incident indicated that other intervention methods should be considered and the CEW challenge issued whenever possible prior to using the CEW. I would like to re-emphasize the Commission's 2006 decision¹ in which I concluded that the use of intermediate devices such as a CEW is a judgment call that requires the member to exercise common sense. When considering how much force is appropriate, it would be reasonable to expect the member to consider the principle of proportionality: the amount of force used should bear some reasonable relationship to the amount of resistance the members are facing, as well as the context of the incident.

First Taser Deployment

There is some discrepancy in the evidence regarding whether or not Mr. A had exited his vehicle prior to Corporal B's approach. Mr. A stated that he did not, and his evidence was supported by that of his passengers. Corporal B, Constable C and Mr. F all stated that Corporal B had initially interacted with Mr. A while the latter was still in his vehicle. Given Mr. F's status as an independent witness, unconnected to either Mr. A or the members, I prefer his testimony, which was consistent with that of the members. All of those individuals stated that Mr. A was initially in his vehicle. I also accept the evidence of the members regarding what occurred prior to Mr. A exiting the vehicle, as there is no other evidence in that respect and I have no reason to doubt their credibility on that point. Specifically, I accept Corporal B's evidence that he told Mr. A that he was under arrest prior to him exiting the vehicle, and that Mr. A pushed him out of the vehicle on two occasions when he attempted to remove Mr. A.

It is undisputed that Mr. A had exited his vehicle at the point at which the Taser was applied. It is also clear that Mr. A had refused to follow instructions issued by Corporal B prior to the application of the Taser. Although Mr. A described his behaviour as non-threatening, Corporal B stated that he felt threatened, as Mr. A was in a combative and aggressive stance and was only approximately ten feet away, a distance that can be covered in two strides. Corporal B also stated that he was standing at the edge of a ditch and wanted to avoid entering into a struggle with Mr. A in large part due to their location. Corporal B had prior knowledge of Mr. A and was aware that he was apparently capable of violence and unpredictable to a certain degree. Mr. A had two passengers in his vehicle.

I find that Mr. A's actions in pushing Corporal B, as well as his failure to follow directions, could most reasonably be classified as behaviour that was resistant to combative. Mr. A is a large man, comparatively larger than Corporal B, and Corporal B had prior knowledge of Mr. A's temperament which he believed to be valid. Corporal B had also attempted verbal intervention in issuing directions to Mr. A and had employed soft empty hand control in trying to remove him from the vehicle, both of which failed. Given Corporal B's prior knowledge and Mr. A's actions, I find that it was reasonable for Corporal B to perceive Mr. A as a threat. I also find that Corporal B's failure to issue a CEW challenge was reasonable given Mr. A's proximity and the perceived threat level at the time.

Mr. A had demonstrated resistant to combative behaviour, he posed an objective physical threat, Corporal B reasonably perceived him as a threat, and time had been taken to attempt methods of intervention short of using the Taser. Accordingly, I find that it was both reasonable and consistent with RCMP policy for Corporal B to deploy the Taser in the first instance.

Subsequent Taser Deployments and Other Physical Force

Mr. A stated that while he was on the ground, Corporal B deployed the Taser a second time without warning. Corporal B and Constable C stated that they were shouting repeatedly for Mr. A to remain on the ground and put his hands behind his back but he continued to rise, and for that reason Corporal B deployed the Taser a second time while Mr. A was on his hands and knees. The witnesses did not give a consistent account of what occurred, although one heard the members tell Mr. A to put his hands behind his back or he would be tasered again and one saw Mr. A attempting to rise. Mr. A was unable to provide a great deal of evidence on this point, as he claimed to be disoriented as a result of the application of the Taser.

Mr. A stated that the Taser was deployed a third time when he was still on the ground, and after he had rolled onto his back. Again, Mr. A testified that he was disoriented following the application of the Taser and his evidence on this point was relatively sparse. The members stated that the Taser was deployed a third time when Mr. A refused to comply with directions to put his hands behind his back in order to be handcuffed. According to the members, they were in close proximity to Mr. A and Corporal B was kneeling on his back to attempt to gain control of him, but he continued to struggle and resist being handcuffed.

Mr. A claimed in his complaint that Corporal B also kicked him in the face, ribs, shoulder and arms when he was incapacitated as a result of the Taser. Corporal B denied doing so. At trial, Mr. A testified only that Corporal B kicked him in the ribs. Mr. A submitted pictures of his injuries. Those pictures clearly show extensive bruising on Mr. A's body.

It is undisputed that Mr. A was tasered on two occasions while on the ground. The trial judge, after listening to witness testimony and receiving the photographs in evidence, determined that Mr. A had been kicked in the torso area. The trial judge determined that the force used against Mr. A was, in its entirety, excessive, and I can find no reason to disagree with his finding in respect of the second and third Taser deployments and the kicks. Once on the ground and having been subjected to one Taser deployment, which had clearly incapacitated him to some degree, Mr. A no longer posed as great a physical threat as he had before the initial Taser deployment. In addition, he was neither demonstrably resistant nor combative; in my view, his failure to follow directions could most reasonably be classified as non-cooperative. In light of this, I find that adequate time was not taken to attempt methods of intervention short of using the Taser that would manage risk while at the same time causing less harm. Conducted energy weapons are intended to subdue resistant and combative individuals and not to persuade recalcitrant individuals to follow police directions. In the same vein, the use of force such as kicks is reserved for those situations where individuals are, at the very least, resistant. Having found that Mr. A's behaviour following the first Taser deployment could not be classified as resistant, I find that Corporal B used excessive force in continuing to employ the Taser against Mr. A and in kicking him.

In a recent decision, I also encouraged the RCMP to review its policy relating to Taser use and provided a number of suggestions for consideration during such a review.² As I have noted previously, I believe that situations such as this serve to underscore the need for such a review.

Recommendation: That Corporal B be provided with operational guidance relating to RCMP policy pertaining to the use of conducted energy weapons and its application in the context of the IM/IM.

Second Allegation: Mr. A was kept in police custody needlessly.

Corporal B stated that he and Constable C intended to take Mr. A to the hospital to have the probes removed, but decided to stop at the Shediac RCMP Detachment's secure bay first, as Mr. A was complaining of pain from his handcuffs. Corporal B stated that the members intended to handcuff Mr. A in front of his body instead of behind. According to Corporal B, once in the secure bay one Taser probe had fallen out and Mr. A pulled the other out himself. As a result, Mr. A was not taken to the hospital and was instead brought into the detachment for the collection of a breath sample. Corporal B explained that Mr. A refused to provide a breath sample, and that the members continued to investigate Mr. A's alleged assault and uttering threats against Mr. I

According to Corporal B, he felt that it was important that he speak with his non-commissioned officer (the Acting District Commander) and the District Commander regarding Mr. A's apprehension. Corporal B stated that he recalled discussing with the Acting District Commander, Sergeant J, whether or not Mr. A should be released, and took into account that Mr. A was known to the RCMP, had been investigated several times for intimidation, had been "in a position to have been charged on several occasions for different types of offenses," and that many people were afraid of Mr. A. Corporal B stated that he was afraid that Mr. A would go after Mr. I, and indicated that he had not yet taken statements or photographs.

Corporal B stated that he proceeded to do a photo line up, which took a "fairly lengthy" period of time and during which the alleged victim and a witness could not identify Mr. A. According to Corporal B, he decided along with his non-commissioned officer to hold Mr. A for court based on the description of him and his vehicle given by the alleged victims as well as Corporal B's opinion that Mr. A was highly intoxicated. Corporal B also noted that the alleged victim and the witness had both received telephone calls from community members since Mr. A's arrest, "advising that Mr. A is an ex-RCMP and that he is danger. They advised that he does cocaine... They were advised that he is a dangerous man and that they should not be involved with him because he is known to be dangerous and on cocaine." Mr. A was kept in cells, remanded the following day and taken to court the day after that, at which point he was released.

The Criminal Code provides that in situations where a suspect is arrested without a warrant for offences such as those in this matter, the officer in charge should release the accused from custody as soon as practicable, either upon the accused entering into a promise to appear or a recognizance, or with the intention of compelling the accused's appearance at trial through the issuance of a summons. The legislation provides that in certain circumstances an accused should not be released, namely if there is a need to establish his or her identity, to safeguard evidence, to prevent the repetition of the offence, to ensure the safety and security of a victim or witness, or if there is a likelihood that the accused will not attend court.

In this instance, Mr. A's identity was known. However, various RCMP members were making efforts to obtain any evidence relating to the offence, and there had been concerns expressed for the safety of the alleged assault victim and another victim. Corporal B stated that he was concerned for the safety of Mr. I and worried that Mr. A would go after him. In addition, the investigational file indicates that it was stated following Mr. A's apprehension that he had threatened to kill Mr. I. In my view, the criteria enunciated in the legislation applied in this instance so as to justify Mr. A's continued detention. Consequently, I find that Mr. A's continued detention was reasonable and consistent with the applicable legislation.

Finding: Mr. A's continued detention was reasonable and consistent with the applicable legislation.

Third Allegation: Inspectors D and E took no action to correct Mr. A's situation.

Mr.  A would not provide a statement in the course of the public complaint investigation. As such, I must infer that in complaining that Inspectors D and E took no action to correct his situation, Mr. A feels that the members should have intervened in his arrest and/or detention.

Corporal B stated that he felt that it was important that the District Commander know of the situation with Mr. A, and consequently called Inspector D to tell him that Mr. A was in custody. Corporal B stated that Inspector D was no longer at the detachment at that time, and the next District Commander, Inspector E, would not be starting until September.

Inspector D provided information indicating that he had been transferred from the Shediac RCMP Detachment to the District Policing Program on July 1, 2004, was on annual leave at the time of Mr. A's arrest, and only returned to the Shediac RCMP Detachment in September 2005. Inspector D explained that while Corporal B did call him, he interpreted the call as being "courteous in nature" and recalled that Corporal B had already consulted Sergeant J and they had agreed on a course of action.

Inspector E indicated that he was away on leave at the time of Mr. A's arrest, and was not contacted in respect of the arrest or otherwise made aware of it. Inspector E provided information indicating that he returned to work on August 23, 2004.

Neither Inspector D nor Inspector E were on duty during Mr. A's detention. Accordingly, I find that it was not improper for either member not to act in respect of Mr. A's situation.

Finding: The inaction of Inspectors D and E with respect to Mr. A was not improper.

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

1 PC-2003-0061.

2 PC-2003-0921.