Vice-Chair's Interim Report – Incident Related to Neglect of Duty and Excessive Use of Force (Police Service Dog)

Vetted version for posting

Commission for Public Complaints Against the RCMP

RCMP Act Paragraph 45.42(3)(a)

May 15, 2006

Overview

On September 21, 2002, at approximately 4:15 p.m., an Alberta RCMP detachment received the complaint of a vehicle stolen from the YMCA parking lot. Two individuals, Mr. A and Mr. B, later admitted to stealing the car. They drove around in the vehicle for about 45 minutes. The vehicle became stuck in the ditch. The men abandoned it and started walking back to town. An RCMP member was patrolling the area searching for this vehicle. At approximately 5:30 p.m. he observed two male persons. As he approached, the two crossed the road and ran into the bush. The member requested search assistance.

An RCMP dog handler and his Police Service Dog (PSD) attended the scene and commenced a search for the two males. After a lengthy search, lasting over an hour and a half, the PSD located the two suspects sitting in the bush. The dog handler apprehended them. While being apprehended, Mr. A was bitten by the PSD. He was taken for medical treatment for a dog bite measuring 3.5 centimetres by 5 centimetres and requiring seven stitches to close.

On October 1, 2002, the complainant complained about the conduct of several RCMP members. She essentially alleges that: Member. A, the dog handler, neglected his duty and used unnecessary force when he allowed his PSD to attack Mr. A; Member. A used excessive force in the arrest of Mr. A when he struck him with his flashlight; Member B was unprofessional in that he made inappropriate remarks about Mr. A; and the RCMP members were unprofessional and racist in their treatment of Mr. A and Mr. B.

As required by the RCMP Act, the complaint was forwarded to the RCMP for investigation. Following its investigation, the RCMP provided the complainant with a letter of disposition dated July 16, 2003. In that letter the RCMP informed the complainant of the results of its investigation. The letter of disposition failed to deal with the allegations with respect to Member B or the general allegation of racism. The allegations against Member. A were determined to be unwarranted.

On September 15, 2003, the complainant asked the Commission to review the RCMP investigation.

Upon my review of the facts and evidence related to this complaint I have found that: Member. A used excessive force when he commanded the PSD to attack and when he struck Mr. A with his flashlight. In terms of the complaints against Member B in respect of his unprofessional conduct and inappropriate remarks, although not specifically addressed in the letter of disposition, I found no evidence to support either allegation. The unfortunate treatment of Mr. A was, in my mind, the product of Member. A's failure to properly handle the PSD and not the result of racism, personal or institutional.

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 and recommendations 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 initial complaint, supporting documentation, the letter of disposition including the investigative report, the request for review and all other memos and correspondence contained in the relevant material.

First Allegation: Member. A used excessive force when he commanded the PSD to attack Mr. A.

Mr. A and Mr. B admitted stealing a car sometime between 3:15 p.m. and 4:15 p.m. on September 21, 2002. They drove around in this vehicle for about 45 minutes. They abandoned the vehicle when it got stuck in a ditch. They started walking back to town and when they saw an RCMP member approaching in his police vehicle they ran away into the bush. That RCMP member contacted Member. A and his PSD to search the area for the two individuals. The PSD lost their track where it crossed a road that pedestrians walking their dogs had contaminated. The RCMP member and Member. A called off the track and continued the search in the police dog vehicle. At approximately 8:00 p.m., Member. A searched an area near the beaver dam. He allowed the PSD "off-line" to search on his own initiative. The PSD found Mr. A and Mr. B sitting in the woods. At this point in time it was not known to the officers that these were the men who had taken the vehicle.

In his own words, Member. A describes what followed:

As I ran towards the area, where I heard [the PSD] yelp I saw him coming back at me limping from the front end. I had no idea what had happened, but then I some movement in the area and saw a male dressed in dark clothes see me and then start to run. I yelled at the male to stop, as I always do and then told [the] PSD. to apprehend the male. [The] PSD. stopped the male by tackling him, and when I got to them I saw second male as well. I pushed that male to the ground and told him not to move. This male went in to a prone position with his head facing [the road]. I then turned and saw the male in the dark clothes, punching [the] PSD. in the head/face area, with his left fist. I ran at [the PSD] and the male and told the male to stop aggressing [the PSD] immediately. The male continued punching [the PSD]. I was alone in the bush with two males, one male was aggressing the dog, and I could not get heard on my Police Radio immediately. I tried to pin the male aggressing [the dog] onto his stomach, but he refused. He was trying to pull away from me, and [the PSD], the male was trying to run away and was not listening to my direction at all. I also kept looking at the second mail in question. In case he decided to run or aggress me and [the PSD]. This male was still the prone position looking out at [the road] and did not move. He would be ahead of us and we would be behind him.

While wrestling on the ground with the male I realized that he was a risk to us from his actions. He was still aggressing [the PSD] and would not listen to me. At one point the male tried to throw me off his back with his right arm that [the PSD] had by his mouth, the male took a haymaker swinging action in my mind trying to throw the dog off his arm. I finally took my flashlight into both of my hands like a defenseman who crosschecks a forward in front of the net in the back. I began doing this motion with my light into the shoulder blade area of the males back and after approximately three motions the male went to the ground and stopped resisting. At this time, I remove [the PSD] from the males arm at this time [another member] entered into the bush area and took both males into custody.

The events occurring immediately before the PSD attacked Mr. A require consideration. Member. A was not alone. Another member was nearby and arrived to assist with the handcuffing of both men. When Member. A discovered these men in the bush he did not know who they were. He did not have grounds to arrest nor did he tell them they were under arrest. Member. A did not know that these men had stolen the vehicle. In his narrative statement, Member. A claims he told the men to "Stop". Later, in response to questions from the public complaint investigator, Member. A claims: "I yelled, 'Police. Stop,' or words to that effect."

Mr. A said he and Mr. B were sitting on the ground when the dog found them and circled around them. They said they did not move. Member. A approached and shone his flashlight on them, but did not say anything except to command the PSD to attack.

I find Member. A's statement problematic. Not until line 54 of his typed statement does Member. A acknowledge that his PSD bit Mr. A and locked onto his arm. One would think that punching a dog in an attempt to force him to release his bite would be a natural reaction. A common reaction that should be expected by a trained dog handler. To Member. A, this represented dangerous aggression. Member. A could have commanded the dog to release the individual at any time, but declined to do so. I do not accept Member. A's assertion that the individual "was a risk to [him] by the actions he had taken by aggressing [the PSD]."

Member. A's account of this apprehension is particularly problematic. I fail to understand why Member. A felt he needed to use force to apprehend these men. I accept their statement that they were sitting on the ground. Member. A implies that the PSD was injured, but, nevertheless, Member. A ordered him to attack. Member. A did not give any warning that the dog would be deployed in attack mode. Failure to command the PSD to disengage after Mr. A was brought to the ground is a continuing and escalating use of force without any apparent justification. It would appear that Member. A allowed the PSD to maintain his hold on Mr. A while he dealt with Mr. B, who was lying on the ground and never moved or said a word. This was unnecessary, and cannot be justified. This was a factual situation in which there was no emergency or necessity and the assistance of another RCMP member was at hand. There was no suggestion that either of these men was violent or that officer safety was an issue. In addition, it bears repeating that, at this time, it was not known to the police that these men had done anything wrong.

Member. A did not believe he was bound by any RCMP policy with respect to deployment of the the PSD. The following question and answer is informative:

Question by public complaint investigator: "Is there any RCMP policy that guides you when using your dog to search or track suspects?"
Answer by Member. A: "Not that I'm aware of, no."

The RCMP's national operational policy provides:

1. The key tasks of the police service dogs are:

1. Assisting police investigators, and the general public in locating evidence, suspects, bodies; and missing, lost or overdue persons;
   [.]

2. A police service dog will always be under the control of its handler. (Emphasis added)

The courts have compared the use of a police service dog to the use of a weapon. It is not a perfect analogy, but useful in reinforcing the notion that any use of force must be justifiable and proportional to the risk of harm. I find that there was no objective risk of harm to Member. A from Mr. A or Mr. B. Further, Member. A's assertion that Mr. A's reaction to being bitten, e.g. punching the dog, constituted aggression is not supported. Member. A deployed the PSD as the principal agent in the apprehension of Mr. A and not as a back-up or to assist. Member. A is responsible for the actions of his police service dog at all times and in all circumstances. Common sense dictates that a police service dog should only attack when necessary. The attack by the PSD in the circumstances was not necessary and constitutes the use of excessive force.

Finding: Member. A used excessive force when he commanded his PSD to attack Mr. A.

Recommendation: Given the age of this complaint, I would normally be reluctant to make a recommendation; however, Member. A is still with Police Dog Services and therefore might benefit from some guidance. I recommend that he apologize to Mr. A and that a senior officer review with him the circumstances surrounding the apprehension of Mr. A and the law as it relates to the use of police service dogs. These recommendations are consistent with the approach taken by the Commission in other complaints where it has been determined that the handler has used excessive force when allowing the police service dogs to attack an individual. The Commissioner has been supportive of such recommendations.

Second Allegation: Member. A used excessive force in the arrest of Mr. A by striking him with his flashlight.

Mr. A was arrested on September 21, 2002. On December 12, 2002, the complaint investigator interviewed Mr. A who provided a copy of his written statement outlining his account of the events of September 21, 2002:

"The policeman with the dog yells the command for the dog to attack, and it grabbed hold of my right bicep. The policeman threw elbows at me, or punched me in the back of the head with his fist, I could not see what he was using, as I was on my stomach on the ground; however, I was being hit in the back of the head, while I was down."

On December 12, 2002, in answer to questions by the public complaint investigator, Mr. A appears to contradict his written statement:

Q. Were you at any time during this incident struck by a police officer? If so when and how?

R. No I wasn't.

Q. Did you tell your mother something different?

R. No.

This becomes an issue, because it appears that the public complaint investigator concluded that Mr. A was recanting his earlier allegation that Member. A had struck him in the head. However, given the framing of the questions posed, this is not a sustainable conclusion. In his lead-up questions the public complaint investigator refers to Member. A as "the police officer with the dog," or "the dog handler." When the public complaint investigator is not talking about Member. A he refers to "another police officer" or "a police officer." Mr. A alleged he was struck on the head by the dog handler (Member. A). I am of the opinion that his answers to the public complaint investigator's questions simply meant that he was not struck by "another police officer" other than the dog handler.

Furthermore, Member. A admits to striking Mr. A with his flashlight in the back and neck area. Mr. B says: "I saw the cop throw a punch or an elbow at [Mr. A]." I find that Member. A struck Mr. A with his flashlight. There is no apparent justification for this use of force or striking in any form. In all the circumstances, striking Mr. A with his flashlight was an unnecessary use of force by Member. A.

Finding: Member. A used excessive force in the apprehension of Mr. A when he struck him with his flashlight.

Recommendation: This Interim Report will provide Member. A with the appropriate instruction regarding future similar situations; therefore, I make no recommendation in regards to his conduct.

Third Allegation: Member B was unprofessional in that he made inappropriate remarks about Mr. A.

Fourth Allegation: The treatment of Mr. A and Mr. B reflected racism by the RCMP.

The complainant, mother of Mr. A, claims that after her son's arrest and while he was in custody, Member B spoke to her on the telephone. The complainant complains that Member B characterized her son as the "ringleader" and that he had "a big chip on his shoulder." The RCMP public complaint investigator indicates that a statement was given by Member B in respect of this allegation; however, it was not included in the relevant materials. I do not know whether Member B adopts these remarks or denies them. Assuming that he made these comments, it appears that he did so after interviewing Mr. B. These comments are consistent with the tone of the interview conducted with Mr. A. On the face, these comments may not reflect an appropriate assessment of the character of Mr. A; however, in all the circumstances, it cannot be said that they constitute unprofessional conduct.

In respect of the allegation related to racism, it bears repeating that this was not specifically addressed in the letter of diposition nor was it raised by the complaint in the request for review.

The complainant comments: "Had these two boys been two blond white boys, would they have received the same type of brute force used by the white policeman? My son is Métis. [Mr. B] is also Métis."

Generally, racism is demonstrated by proving three essential elements. Firstly, the person received negative, differential treatment from the respondent. Secondly, the person is a member of an identifiable minority. Thirdly, the respondent knew that the person was a member of a minority. After these elements are demonstrated the onus shifts to the respondent, in this case the RCMP, to show that the negative differential treatment was attributable to some other cause.

In my opinion, there are two significant reasons why a finding of "racism" cannot be made in this case. First, there is no evidence that any of the members knew that the suspects they were pursuing were Métis. Neither Member. A nor Member B saw either of the men until they were arrested. Secondly, the interview conducted by Member B with Mr. B and his mother contains no hint of racial bias. In fact, Member B presents as professional, kind and sensitive to the circumstances of Mr. B.

Further, it is my opinion that the unfortunate treatment of Mr. A was a result of Member. A's failure to properly handle his PSD and not the result of racism, either personal or institutional.

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

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Extracts of Commissioner's Notice

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Commission for Public Complaints Against the RCMP Act

After careful review of the material, I cannot conclude, as you have, that [the dog handler (the subject member)] used excessive force when he commanded his police service dog to apprehend [Mr. A]. I have found [the member's] statements to be as credible, if not more so, than those of [Mr. A and Mr. B].

[The subject member] was alone when he caught up to [Mr. A] and [Mr. B], and had no other option but to rely on the assistance of his dog. I find that [the subject member], after two hours of searching the area in the dark, had reason to suspect that these two individuals were those that he was pursuing. Given the circumstances, I find that [the subject member] deployed his police service dog in accordance with the RCMP's Incident Management/Incident Intervention Model (IM/IM). Officer presence and verbal intervention had both been unsuccessful in gaining compliance, as [Mr. A] was again attempting to flee the police. It was therefore reasonable for [the subject member] to allow his dog to hold onto [Mr. A] while he took control of [Mr. B].

You have stated that there was no objective risk of harm to [the subject member] from [Mr. A] or [Mr. B]. Let me just say that officer safety is always of utmost concern when apprehending suspects. In this particular case, two individuals had been fleeing police for more than two hours. It was dark, and the only information available to [the subject member] was a physical description of the two men. Their reasons for fleeing and ultimate intentions were yet unknown. As a result, I do not support your recommendations that [the subject member] apologize to [Mr. A], nor that a senior officer review with him the circumstances surrounding the apprehension of [Mr. A] and the law as it relates to the use of police service dogs.

With respect to your second finding, I do not agree, as stated, that [the subject member] used excessive force in the arrest of [Mr. A] by striking him with a flashlight. [The subject member]'s exact words were: "I finally took my flashlight into both of my hands and like a defence man who cross checks a forward in front of the net in the back I began doing this motion with my light into the shoulder blade area [...]." [The subject member] used the least amount of force necessary to manage the risk and to control [Mr. A]. Clearly, the first three options had been attempted and had failed. Given the circumstances, O.C. spray was not practical, and he opted for the next level of intervention, namely an impact weapon. He stopped using it as soon as [Mr. A] demonstrated compliance.

I concur with you that the comments attributed to [the second member], if made by him, do not, in the circumstances, constitute unprofessional conduct, and I found, as you did, insufficient evidence to support the allegation of racism by the RCMP.

I thank you for your advice in this matter, and I look forward to receiving your final report.