Vice-Chair's Interim Report – Incident Related to Improper Attitude

RCMP Act Paragraph 45.42(3)(a)

Vetted version for posting

June 9, 2008

Overview

On February 8, 2007 at approximately 12:45 a.m., Mr. A, of Surrey, British Columbia, parked his vehicle in a designated "no parking area" at a Tim Horton's restaurant at Highway 10 and Ladner Trunk Road in Delta, British Columbia. While walking towards the restaurant, Mr. A was asked by Corporal B of the RCMP's Deas Island Lower Mainland District Traffic Services to move his vehicle from where he had parked it. Notably, Corporal B had asked another driver to move his vehicle from that spot shortly before Mr. A's arrival.

When Mr. A did not move the vehicle, Corporal B asked to see his driver's licence. Mr. A asked what he had done wrong and did not provide his driver's licence when asked. Corporal B told Mr. A that he had seen him driving and parking in a no parking zone and that he was required to provide his driver's licence. Corporal B also told Mr. A that if he did not comply, he would be arrested for obstructing a police officer. Mr. A did not comply with the request and said that he had done nothing wrong and was not obstructing a police officer. According to Corporal B, Mr. A was nervous and fidgety.

When Mr. A refused another demand to produce his licence, Corporal B advised him that he was under arrest for obstruction. Mr. A initially resisted the handcuffing and Constable C, one of two other RCMP members assisted Corporal B. Corporal B then searched Mr. A locating his wallet and driver's licence. Corporal B then queried CPIC with negative results. It was at this point that Mr. A then complied with the request to move the vehicle and was released without charge. Corporal B explained to Mr. A that none of this would have happened had he been cooperative with him in the first place.

On February 8, 2007, Mr. A complained to the Commission for Public Complaints Against the RCMP (the Commission) about the conduct of Corporal B. The complaint alleges that Corporal B displayed an improper attitude and behaviour in that he treated Mr. A like a criminal and the reason for his treating him in that manner is a result of racism.¹

As required by the RCMP Act (the Act) the RCMP investigated the complaint.² According to the Act, on completion of the investigation, the RCMP Commissioner (or his delegate) shall send his Final Report to the complainant summarizing the results of the investigation and any action taken to resolve the complaint. In this case, the RCMP provided a Final Report dated December 19, 2007, which did not support the complaint.

Mr. A was not satisfied with how the RCMP responded to the complaint and on February 11, 2008, he requested a review by the Commission. The Commission received the investigation documents on April 2, 2008.

For the reasons outlined below, I have concluded that Corporal B's conduct was improper and that the arrest was unlawful.

Commission's Review of the Complaint

It is important to note that the Commission 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.

My findings, as indicated below, are based on a careful examination of the investigation documents. This includes the RCMP's operational file, the statement provided by Mr. A, the statement of Corporal B, the statements of Constables C and D, as well as a summary of the interviews with Messrs. E, F, and G. My findings are also based upon a careful examination of British Columbia's Motor Vehicle Act.

Allegation: Corporal B displayed an improper attitude and behaviour in that he treated Mr. A like a criminal and his reason for treating him in that manner was a result of racism.

The facts giving rise to Mr. A's complaint are, generally, not in dispute. The evidence is set out earlier in this report. Although the complaint incident occurred in Delta, British Columbia, which has its own municipal police force, a member of the RCMP does have the authority to enforce Motor Vehicle Act offences, Criminal Code offences and municipal bylaw contraventions within Delta. Corporal  B saw Mr. A driving his vehicle and consequently, he had the authority to request to see his driver's licence.

The incident began when Corporal B attempted to enforce a no parking sign in the restaurant parking lot. Corporal B's actions were based on his belief that by parking in a no parking area in the Tim Horton's restaurant parking lot, Mr. A had committed an infraction under the Motor Vehicle Act. When Mr. A refused to move the vehicle, Corporal B had the lawful authority under the Motor Vehicle Act to request that Mr. A produce his driver's licence to him.

Failure to provide a licence pursuant to a request by a peace officer in the Province of British Columbia is an offence under section 71 of the Motor Vehicle Act. It is also an offence under the Motor Vehicle Act for a driver not to identify oneself to a peace officer when asked to do so.

However, there was no lawful authority to arrest Mr. A for failing to produce a driver's licence and there is no evidence that Corporal B asked Mr. A to identify himself, or whether he queried the complainant's vehicle plate number in order to identify the registered owner. In any event, there is no evidence that the no parking sign was erected pursuant to a bylaw and as a result Corporal B did not have the lawful authority to enforce a private sign.

The evidence indicates that Corporal B arrested Mr. A for obstructing a police officer under section 129(a) of the Criminal Code. The legal elements of this offence are as follows:

• there must be obstruction;
• the obstruction must have been willful; and
• the police must have been in the execution of their duties.

All three of these elements must have been satisfied for the arrest of Mr. A to be lawful. In the current case, the evidence indicates that Corporal B was not acting in the lawful execution of his duties when he enforced the no parking sign, because he had no lawful authority to do so. He did not ask Mr. A to identify himself and there is no evidence of any actual, willful obstruction on Mr. A's part. For these reasons, Corporal B did not have the requisite grounds to arrest Mr. A for the criminal offence of obstruction.

The evidence indicates that Corporal B also asked another motorist to move from the no parking area immediately prior to Mr. A's arrival. The evidence, including statements from Mr. A's co-workers and the other members who were present, indicates that Corporal B made no racial slurs. Nor did they believe that Mr. A's race played a role in the incident. Although Corporal B was aware of Mr. A's race before he asked him to move his vehicle, this does not necessarily mean that race was a motivator of Corporal B's actions. However, Corporal B's actions were such that I can understand why Mr. A was left with such an impression. It is not clear why Corporal B felt it was a prudent use of his time to enforce parking infractions at a Tim Horton's in a city with its own police force. This was truly an unfortunate incident cascading from a parking infraction on private property at 12:45 in the morning.

Having considered the complaint, I hereby submit my Interim Report in accordance with paragraph 45.42(3)(a) of the RCMP Act.

Brooke McNabb
Vice-Chair

1 Mr. A describes himself as a man of color.

2 There was also an unsuccessful attempt made to informally resolve the complaint.