Chair's Interim Report – Incident Related to Excessive Use of Force, Improper Attitude and Oppressive Conduct

RCMP Act Paragraph 45.42(3)(a)

Version Vetted for posting

December 18, 2007

Overview

On December 11, 2004 at approximately 8:50 a.m., Constable B and Constable C of the North Vancouver RCMP Detachment in British Columbia attended the residence of Ms. A, the complainant, for the purpose of arresting her 14-year-old son. Ms. A returned home while Constable B was speaking to her son, and a brief physical altercation ensued between Ms. A and Constable B. Constable B arrested Ms. A for obstruction.

On December 14, 2004, Ms. A complained about the conduct of Constable B and Constable C. In her complaint, she essentially alleges that Constable B improperly arrested her, and that Constable B and Constable C used improper force towards her.

As required by the RCMP Act, the complaint was forwarded to the RCMP for investigation. Following its investigation, the RCMP provided Ms. A with a letter of disposition dated April 27, 2005 that did not support her allegations.

The Commission received Ms. A's request for review on February 19, 2007 and the materials related to this file from the RCMP on March 22, 2007.

For the reasons outlined below, the evidence leads me to conclude that Constable B's warrantless arrest of the complainant's son was improper, but that he and Constable C did not use excessive or improper force towards the complainant.

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 the 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 investigative file, the statements of the RCMP members and of the complainant and her sons, and the relevant policy and legislation.

First Allegation: Constable B improperly arrested Ms. A.

In her complaint, Ms. A stated that on the morning of December 11, 2004, she noticed a police car on the road in front of her home as she returned from getting food for her sons. She stated that she approached an RCMP member (later identified as Constable B) and stated that she was the owner of the house, and that Constable B simply looked at her before walking toward the house. Ms. A related that she then said, "can I help you," and stood in front of her door as she had not invited Constable B into her home. She stated that she asked him to wait outside and asked whether or not he had a warrant, but he indicated that he had not yet done the paperwork. The complainant explained:

The he push his way intoo my house by bumping into me, and as I was falling back, the overweight cop grab my arm and slam me up wall theput his knee right in the middle of my back with all his weigtht. It was like a train ran into me from behind. I can hear my back crack all the ways up my spine. Then Constable [B] call up back up because I was screaming at [Constable B] saying he has no right hurting me like this... Then Constable [B] yek me out of my house in handcuff, like I just rob a bank or something [sic throughout].

The complainant related that she continues to experience back pain and that her right leg drags as a result of Constable B's actions.

The complainant's 14-year-old son, D, stated that on the morning of December 11, 2004, his brother informed him that Constable B was at the door and needed to talk to him. D stated that he went to the door, and Constable B explained to him that he was under arrest for "a car or something like that" and read him his rights. D stated that his mother arrived home five to ten minutes later, as he was about to get his shoes to accompany Constable B. D stated that his mother asked for a warrant, and he related: "and then he came in the house and then I guess my mom tried to like push him out and then he, he like forced his way into the house and then I had to go get my shoes and then I came back out, my mom was arrested against the wall." He also recalled his mother calling for the family dog, a Rottweiler. D explained that his mother was then escorted out of the residence by Constable C, who had arrived at the residence.

The statement of the complainant's other son, was substantially similar to that of D. He added that Constable B, upon arrival at the residence, told him that he had come to arrest his brother, but had no warrant for the arrest. He stated that when his mother arrived home, his brother had agreed to go with Constable B but needed to get his clothes. The complainant's other son also added, in response to a question from the public complaint investigator, that his mother had told him that the investigator would need to hear about her back pain and her arrest.

Constable B stated that on September 27, 2003, he was called to attend a report of a break and enter to an underground parking lot, where three vehicles were broken into. A witness had interrupted the suspects breaking into a fourth vehicle. Following his investigation, Constable B identified D as a suspect in the break-ins and attempted theft, but there was insufficient evidence to proceed with a charge. Constable B stated that on July 15, 2004, he investigated a report of a stolen and abandoned car where evidence gathered again led him to identify D as a suspect. Fingerprints found on the stolen car were matched to the complainant's son. The relevant continuation report indicated that on December 11, 2004, when he next came on shift and acquired the report (dated November 24, 2004) identifying D's fingerprints, Constable B consulted with his supervisor, Corporal E. Corporal E pointed out that D was a suspect in more than one theft or attempted theft, and continuation of the offence was a concern. The report indicates that it was decided to arrest D and release him on a Promise to Appear with undertakings. Constable B stated that as a result, he attended the complainant's residence on December 11, 2004, when he came on shift.

Constable B explained that when he arrived at Ms. A's house, the complainant's other son answered the door and went to get his brother, D. Constable B stated that when D came to the door, he advised him that he was under arrest for possession of property obtained by crime in relation to the vehicle that was abandoned on July 15, 2004. According to Constable B, D said that he understood his state of arrest, although he was confused because he had recently been to court regarding a stolen vehicle. Constable B related that he explained to D that the court appearance had been in respect of a different stolen vehicle, and was about to advise him of his Charter rights when Ms. A arrived home.

According to Constable B, Ms.  A was immediately agitated upon arrival at her residence, and wanted to know why he was there. Constable B stated that he explained to her why he was there, and told her that D was under arrest. He indicated that Ms. A, like D, was confused, as the latter had recently appeared in court on a similar matter. Constable B stated that he explained to Ms. A that this was a different matter. He related that Ms. A continued to be very belligerent, swore at him, and stated that he would not be arresting her son. Constable B stated that he explained to her that her son was already under arrest, but Ms.  A stated, "Well, we're going back in the house and closing the door and you're not coming again." Constable B stated that he told Ms. A that that was not an option, that her son was already under arrest, and that if necessary, he would enter the house to get him. He explained that Ms. A then pushed D into the house behind her and started to close the door.

Constable B stated that when Ms. A started to close the door, he pushed it open and she stepped back, trying to place herself in front of D. Constable B explained that he then called for a second unit, and "swept [the complainant] out of [his] way to the right. [...] just to clear a path so [he] could take physical possession of [D]." He stated that he continued to "hold" Ms. A to the right while holding D's arm, and explained to her that she would be arrested for obstruction if she continued. Constable B indicated that at that point, the Ms. A started calling for the family dog, and stated that she would "sic" the dog on him. According to Constable B, Constable C then arrived. Constable B stated that he let go of D and pushed Ms. A out the door and asked Constable C to keep her out of the house. Constable B stated that he then arrested and handcuffed her son, advised him of his Charter rights, and gave him a police warning. He then placed D in the rear of his police vehicle. He stated that at that point, Ms. A was in the rear of Constable C's vehicle, and Constable C explained that Ms. A had become very resistant and he had arrested her. Constable B stated that at that point, he asked Constable C to advise the complainant that she was under arrest for obstruction.

When he was questioned by the public complaint investigator, Constable B indicated that he did not throw Ms.  A up against the wall and that the complainant never struck the wall, although he was holding her back with his arm.

Constable B stated that upon his arrival at Ms. A's residence, he immediately noticed the complainant, who was at the front door of her house, yelling. Constable C stated that Constable B, who was just inside the front door of the residence, handed the complainant to him, stating "Take her outta here" or something similar. Constable C stated that it was apparent that the complainant was "making [Constable B's] life difficult." He indicated that he escorted Ms. A approximately thirty feet to the rear of Constable B's police vehicle. According to Constable C, the complainant "was extremely agitated, began to yell and attempted to walk towards the house of which I was between her and the house. I told her to calm down and she didn't [...] she continued to yell." Constable C stated that he informed Ms. A that she was under arrest for causing a disturbance by yelling, and asked her to turn around and put her hands behind her back. Constable C indicated that the complainant was resistant and refused to cooperate, although she was not combative. Constable C stated: "Basically, I spun her around and forced her left arm behind her back, sort of in a joint lock just to, to gain control of her. Advised her numerous times to stop resisting and she refused to listen [...]."

Constable C stated that as he attempted to handcuff Ms. A, he had her pinned against the police vehicle. He related that he was eventually able to overpower the complainant, bring her arm behind her back and handcuff her. Constable C explained that Ms. A then mentioned that her watch had broken, which seemed to agitate her even more. He indicated that he then escorted Ms. A to his police vehicle and placed her inside. According to Constable C, he then returned to the residence to speak with Constable B, who explained that the complainant had prevented him from following D, who was already under arrest, and advised him to place the complainant under arrest for obstruction. Constable C stated that he had reasonable grounds to believe Ms. A could be arrested for the offence of obstruction and, accordingly, he returned to his vehicle and effected that arrest. He then transported Ms. A to cells.

When questioned by the public complaint investigator, Constable C indicated that he leaned Ms. A against a police vehicle to control and handcuff her, but did not slam her against the vehicle. He also stated that her chest, head and upper shoulders never touched the police vehicle, although her mid-section or abdomen did.

A neighbour of the complainant's stated that on the relevant date, he observed Ms. A approach her residence and start speaking to an RCMP member, who was already at the residence. The neighbour stated that both Ms. A and the RCMP member were standing outside the residence. According to the neighbour, Ms. A began yelling, "Well, let's see your warrant. You can't go in there without a warrant." He indicated that the complainant then tried to get around the member, who stated, "You gotta stay out here. It's a police matter." The neighbour related that at that point, Ms. A was yelling and screaming, and the RCMP member warned her to be careful or she would get herself arrested. The neighbour stated that Ms. A continued to swear at the member, telling him that he could not arrest her. According to the neighbour, the complainant continued to try to get into the residence while the RCMP member put himself in her way so as to stop her. He stated that he then saw Ms. A struggling with the member, who proceeded to handcuff her. The neighbour said that he did not see Ms. A being slammed into a police vehicle, "and [he] watched her getting arrested."

The arrest of the complainant's son

Constable B had gathered fingerprint and witness evidence with respect to the vehicle thefts in which the complainant's son, D, was a suspect. A review of this evidence indicates that based on that evidence, Constable B had reasonable and probable grounds to believe that the complainant's son had committed the criminal offence of possession of stolen property over $5,000 and, accordingly, had lawful justification for arresting him.

The evidence demonstrates that Constable B initially purported to arrest D outside of his home, and then followed him inside the home to effect the arrest. However, the Criminal Code provides that a peace officer may not enter a residence without a warrant in order to arrest an individual unless exigent circumstances exist. Exigent circumstances exist in situations where, for example, there is a need to prevent imminent bodily harm or death, or the destruction of evidence.

In this instance, Constable B arrested D approximately five months after the date of the alleged theft and more than two weeks after his fingerprints had been identified on the stolen vehicle. Constable B was aware of D's identity and there was no indication that the RCMP member sought to protect evidence. However, the continuation report appears to indicate that a warrantless arrest was carried for fear that the offence would reoccur. With respect, I do not find that argument persuasive. While the evidence does indicate that D's involvement was suggested in approximately seven other thefts in the previous three years, at least four of which occurred in 2004, I find that that fact was not sufficient to justify Constable B's failure to seek a warrant for D's arrest. While four thefts within a year are not insignificant, that number, when combined with the time that had already passed since the theft that was the basis for the charge, cannot justify the warrantless arrest within the dwelling-house. While there were reasonable and probable grounds justifying D's arrest, Constable B did not demonstrate that the warrantless arrest in a dwelling-house served the public interest in any appreciable way and, accordingly, I find that the arrest was improper.

The complainant's arrests

All of the parties to the complaint indicated that Ms. A resisted Constable B's arrest of her son and attempted to keep the police out of her residence while keeping her son in. Based on the complainant's and the neighbour's evidence, it appears that Ms. A was angry that Constable B did not have a warrant. Constable B also indicated that Ms. A was initially confused about the reason for the arrest. It also seems apparent, given the consistent evidence of the members and the neighbour, that the complainant was yelling.

Upon arrival at the residence, Constable C arrested Ms. A for causing a disturbance. The offence of causing a disturbance under the Criminal Code is committed by anyone who causes a disturbance in or near a public place by, among other things, screaming, shouting, swearing or using insulting or obscene language. The consistent evidence of the members and the neighbour is that Ms. A was yelling both outside and inside her residence. Although the complainant was expressing her displeasure in respect of her son's improper arrest, Constable C arrived late on the scene and did not witness the earlier events. Accordingly, I find that Constable C had reasonable and probable grounds to believe that Ms. A had committed the offence of causing a disturbance and, consequently, to arrest her. I find, in this instance, that it was appropriate to arrest the complainant without a warrant, as her behaviour, and consequently the offence for which she was arrested, was continuing.

After Ms. A had already been arrested for causing a disturbance and detained in a police vehicle, she was arrested for obstruction as a result of her actions during Constable B's attempt to arrest her son. Under subsection 129(a) of the Criminal Code, anyone who resists or wilfully obstructs a peace officer in the execution of his duty has committed an offence. There are three elements to the offence of obstruction: there must be an obstruction, the peace officer must be in the lawful execution of his duty, and the person obstructing must have done so wilfully. I concluded above that Constable B's warrantless arrest of the complainant's son was improper and, accordingly, Constable B was not in the lawful execution of his duty during the arrest. As such, I find that Ms. A's arrest for obstruction was improper. Nonetheless, I find that Constable C acted in good faith in making that arrest on the information provided by Constable B, who was carrying out an improper warrantless arrest of the complainant's son and, accordingly, I am not inclined to issue any recommendations in that regard.

Recommendation: That a senior officer review with Constable B the circumstances surrounding the complainant's son's arrest and the requirement to obtain arrest warrants in such situations.

Second Allegation: Constable B and Constable C used improper force towards the complainant.

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. The IM/IM specifies that verbal commands should be attempted or considered, followed by soft empty hand control, which includes pain compliance methods; intermediate devices, which include oleoresin capsicum spray; and hard empty hand control, which includes strikes.

In this situation, there is no dispute that Constable B used physical force against Ms. A to effect her son's arrest and maintain control of her. I have determined that Constable B was not in the lawful execution of his duty during his improper warrantless arrest of the complainant's son. It follows that any force used in effecting that arrest was also improper. As such, I find that Constable B's use of force towards the complainant in furtherance of her son's arrest was improper. However, I believe that further recommendations are unnecessary in light of my recommendation in respect of Constable B, above.

With respect to Constable C, he stated that he used a joint lock to gain control of Ms. A following her arrest for causing a disturbance. Constable C also indicated that he first attempted verbal intervention, asking for the complainant to turn around and place her hands behind her back. The joint lock was employed only when verbal intervention failed. The IM/IM authorizes this type of use of force (soft empty hand control) when individuals are non-cooperative and resistant. Based on the consistent evidence of the RCMP members and the neighbour, it is apparent that Ms. A was, at the very least, non-cooperative. Constable C was acting in good faith in his attempt to aid Constable B. Accordingly, I find that the force used by Constable C was minimal, reasonable and, in the circumstances, consistent with the relevant law and policy.

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