Vice-Chair's Final Report – Incident Related to Unlawful Arrest, Unlawful Apprehension of Children, Illegal Entry into Home, Mishandling and Loss of Property, and Bias

Commission for Public Complaints Against the RCMP

RCMP Act Subsection 45.46(3)

December 31, 2007

My Interim Report for this case was issued on August 30, 2006. Commissioner William J.S. Elliott took just over 14 months to respond with his Commissioner's Notice dated November 2, 2007. Such an unreasonable delay brings the administration of justice into disrepute and undermines the legitimacy of the current oversight model whereby the RCMP investigates itself.

In his response Commissioner Elliott addressed the lengthy delay. He stated as follows: "First, allow me to apologize for the length of time that it has taken to respond to your interim report. This case is a complicated and important one and I note that [the complainant] first brought the case to your attention in 2002. I sincerely hope that he is not left with the impression that we do not take these matters seriously." Commissioner Elliott also stated: "On August 15, 2007, I completed my review of the relevant material as well as your findings and recommendations." I note that the actual Notice was not signed by the Commissioner until November 2, 2007, and received by the Commission (CPC) three days later. I would consider Commissioner Elliot's comments more reassuring if the extraordinary delay in this case was isolated. Unfortunately, it is not.

Commissioner Elliott's 2006 accountability report to Parliament includes a Timeliness Study for Interim Report Files for calendar year 2006. It states that it took the Commissioner an average of 2.3 months to respond to interim reports issued by the CPC, about one month longer than the year before. However, a more transparent analysis would have included a timeliness calculation for the 15 outstanding reports which the Commissioner had not responded to. On average, the Commissioner's 15 outstanding responses, which included this file, had been outstanding for about seven months. As of December 31, 2006, there are 19 responses from the Commissioner which are outstanding. Fifteen of these Commissioner's Notices have already been outstanding significantly more then the 2.3 months referred to in the RCMP accountability report. In fact, the response from the Commissioner for these files has been outstanding for an average of 228 days or 7.6 months.

To ensure the timely processing of public complaints, the CPC began introducing performance-based service standards on April 1, 2006. As we reported in last year's annual report we achieved our target of completing Final or Interim Reports for 80 percent of our review cases within 120 days. The CPC has implemented service standards for each step of the public complaint process it is responsible for. Our service standard for processing complaints and delivering them to the RCMP for investigation is four days. Our service standard for processing requests for review and advising the RCMP is 4 days. As of January 1, 2008, we implemented our final service standard of 30 days to complete a Final Report After Commissioner's Notice (FACN).

To ensure a timely response to the members and the complainants, I recommend that the Commissioner institute service standards for the part of the public complaint process controlled by the RCMP. The following service standards would be reasonable: six months to investigate and deliver a report to the complainant; 30 days to forward relevant material to the CPC for review cases; and 30 days to provide the Commissioner's Notice in response to Interim Reports prepared by the CPC. By implementing such service standards non-contentious cases would be resolved in about six months and the members and the complainants would receive the final decision in cases appealed to the CPC within one year from the date of the complaint.

In terms of the details of my decision in this case, even though the Commissioner interprets the evidence differently, upon review of the Commissioner's response I am satisfied that the findings and recommendations in my Interim Report are reasonable. Therefore, I conclude my review of this case with four findings that support the conduct of the members, five adverse findings; five recommendations in light of my adverse findings and one new recommendation in light of the Commissioner's response.

Findings in Support of RCMP Conduct

1. Constables B and A did not unlawfully apprehend the children of the marriage without the involvement of the Ministry of Children and Families.
2. Constables B and A did not conduct an illegal entry into the complainant's home by allowing his ex-wife and her father access to his residence.
3. Constables B and A did not lose the complainant's receipts for the property taken from his home.
4. The decision to arrest the complainant and return the furniture to his ex-wife's home was not biased or improperly influenced by her work at the local RCMP detachment.

Adverse Findings

1. The complainant's arrest for break and enter with intent was improper. There were reasonable grounds to charge (but not arrest) the complainant with the offence of forcible entry.
2. Corporal C directed that Constables A and B seek a search warrant to return the property in question to the complainant's ex-wife. In doing so, the Constables applied for a search warrant for improper purposes.
3. The issue regarding the ownership and possession of the property should have been left to be dealt with by the civil courts.
4. Further, the Information to Obtain did not disclose the true purpose of seeking the search warrant, nor did it contain complete and accurate information. Both these factors may have affected the decision by the Justice of the Peace to issue the search warrant.
5. Finally, in obtaining the search warrant, some reliance was placed on a repealed section of the Criminal Code.

Recommendations

1. Constable A had been a new recruit on field training for only a month or two at the time of this incident and should not be faulted for relying on the guidance of his trainer and/or supervisors. However, both Constable B and Corporal C condoned and/or directed the improper and unlawful arrest of the complainant. Those two officers should be given additional training on their duties and responsibilities as found in section 495 of the Criminal Code and, specifically, their ultimate authority to effect an arrest where no warrant exists.
2. Corporal C and Constable B^[1] should receive guidance on the proper and lawful circumstances in which a search warrant can and should be sought.
3. The officers should be reminded that, as members of the RCMP, they should refrain from becoming involved in matters that should more appropriately be dealt with by the civil courts, unless there are exigent circumstances which require their involvement.
4. All references in RCMP training, policies, etc., to section 329 of the Criminal Code should be removed, unless the reference is made in a purely historical context.
5. The Commissioner should afford priority to the drafting of guidelines for members with respect to the role of the RCMP in civil disputes, including family law disputes.

New Recommendation

To ensure a timely response to members and complainants, I recommend that the Commissioner of the RCMP implement public complaint service standards as follows: six months to investigate and deliver a report to the complainant; 30 days to provide relevant material to the CPC for review cases; and 30 days to provide the Commissioner's Notice in response to Interim Reports issued by the CPC.

As this constitutes my Final Report After Commissioner's Notice, the Commission's mandate in this matter is ended.

___________________________________
Vice-Chair

Brooke McNabb
Vice-Chair
Commission for Public Complaints Against the RCMP
Bag Service 1722, Station B
Ottawa, ON K1P 0B3

^[1] See recommendation made under Allegation One of the Interim Report, referring to Constable A's status as a new recruit on field training.