Vice-Chair's Interim Report – Inconsistency of Public Complaint Investigations conducted by the RCMP Act

Vetted version for posting

Commission for Public Complaints Against the RCMP Act

RCMP Act Paragraph 45.42(3)(a)

June 19, 2006

Overview

In 1999, the complainant was charged with assault on his wife and released on a condition not to contact his wife. In August of the same year he contacted his wife by telephone. She reported the contact to the RCMP Act. Member A of that detachment interviewed the complainant's wife, and together with Member B, attended the residence of the complainant. Upon arrival, Member A arrested the complainant for breaching his Restraining Order. A verbal altercation and a short scuffle ensued in the complainant's front yard. Member A then transported the complainant to the RCMP Act detachment, where he was lodged in cells until late on August 19, 1999. Four days after his release, the complainant went to a doctor complaining that his shoulders had been injured by the RCMP Act while he was in custody. The medical report indicated that the complainant had suffered torn rotator cuff injuries to both shoulders and a broken bone to his left shoulder.

On September 12, 2000, the complainant complained about the conduct of unidentified members of the RCMP Act. In his complaint, the complainant essentially alleges that: unidentified officers assaulted him in the course of his arrest and detention; excessive force was used against him; the RCMP Act failed to provide access to counsel; he was the subject of improper care and treatment as a prisoner; the RCMP Act failed to advise him of his Charter rights and caution him; the arresting officers failed to secure his premises; the RCMP Act engaged in oppressive conduct; and members of the RCMP Act displayed improper attitude.

As required by the RCMP Act, the complaint was forwarded to the RCMP Act for investigation. Following its investigation, the RCMP Act provided the complainant with a letter of disposition dated July 10, 2001 that did not support the complainant's allegations.

The complainant was not satisfied with the RCMP Act report. On December 28, 2001 he asked the Commission to review the RCMP Act investigation.

Commission's Review of the Complaint

It is important to note that the Commission for Public Complaints Against the RCMP Act is an agency of the federal government, distinct and independent from the RCMP Act. When reviewing a complaint, the Commission does not act as an advocate either for the complainant or for RCMP Act 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 complainant's complaint and the RCMP Act'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 investigation report, together with statements attached thereto, the statement of the complainant's wife and all other notes and correspondence included in the relevant material.

First Allegation: Member A, Member B and other unidentified members of the RCMP Act assaulted the complainant in the course of arrest and transport to the cell block; and

Second Allegation: Member A, Member B and other unidentified members of the RCMP Act used excessive force in the arrest and detention of the complainant.

The second allegation raises substantially the same issues as the first allegation. Accordingly, the two allegations will be dealt with together.

It must be noted that this Commission does not have jurisdiction to determine whether any RCMP Act member assaulted the complainant contrary to the provisions of the Criminal Code. However, this Commission is empowered by statute to make findings as to whether an RCMP Act member used improper force in carrying out his or her duties.

There are three separate incidents where the complainant alleges to have been assaulted: firstly, at his home when he was arrested; secondly, in the prisoner bay when he was removed from the police cruiser; and, thirdly, in the drunk tank when his arms were hyperextended.

On August 17, 1999, Member A attended the residence of the complainant's wife and received a complaint that the complainant had telephoned her in violation of his conditions of release. Before going to the complainant's home to arrest him, Member A asked for the assistance of Member B because "The complainant was potentially a very volatile and violent client given his previous criminal record." Both officers arrived at the scene in separate police cruisers.

Upon arrival at the complainant's residence, Member A advised the complainant that he had violated his conditions of release by telephoning his wife and that he was under arrest for breach. Member A indicates that he read the complainant his Charter rights and cautioned him. The complainant claims that he was handcuffed, behind the back, immediately. He explained to the officers that he did not call his wife and alleged that she had called him. He also explained that he was concerned for a sick puppy. At this point the accounts of arrest diverge. The complainant claims he was upset at the officers' apparent lack of concern for his sick puppy. He alleges one of the officers remarked, "we're cops we're not veterinarians." The complainant admits to losing his temper, "so I did lose my temper and I said well I think you're just an asshole." At this point, the complainant claims the police officers immediately threw him to the ground, used plastic lock wrap to secure his ankles, "hog-tied"^[1] him, carried him to the police cruiser and threw him on the back seat.

Member A stated that when he escorted the complainant off the front porch where the arrest had taken place, the complainant turned abruptly towards him, pushed his arm back and attempted to ram his shoulder supposedly in an attempt to escape. Member B indicated that he went to the assistance of Member A when he saw him wrestling on the grass with the complainant who was handcuffed. Neither member can recall that ankle restraints were employed nor that the complainant was "hog-tied". The complainant, in his response to the RCMP Act letter of disposition, states that the suggestion that he tried to push Member A and run does not make any sense at all, supposedly because a reasonable person would not try to hit a police officer or run when your arms are handcuffed behind your back. Clearly, it would be an excessive use of force if Member A wrestled the complainant to the ground simply because the complainant was upset and called him an asshole. However, the evidence as to why the complainant was taken to the ground is contradictory so I am not in a position to prefer one version more than the other.

Member A was by himself when he drove the complainant to the RCMP Act detachment. En route, the complainant continued to behave badly, threatening Member A, slipping free of the ankle restraints and kicking the Plexiglas "silent patrolman." There is no doubt that the complainant's conduct escalated from difficult to dangerous. Member A was justified in calling the detachment to advise that he had a difficult prisoner and would require assistance upon arrival. When Member A and Member B arrived at the detachment there were at least two officers waiting to assist. Neither Member A nor Member B can recall the names of those officers.

The complainant alleges that when the arrived at the detachment he was pulled from the police cruiser and thrown against a cement wall. Furthermore, the complainant alleges that while his arms were still handcuffed behind his back, he was taken to the ground in the holding tanks by four members. He states that he was held face down on the floor with one cop putting his left boot on the side of his face and two other cops on each leg. While being held in this position, the complainant alleges that one cop pulled his arms up behind his back until his shoulders ripped. He described the pulling of his arms as follows:

[...] then he grabbed my thumbs and the handcuffs and ah said oh so you still think you're tough eh ...? And he ripped my arms up as high as it well higher than they go while my hands were behind my back and ripped my shoulders out. I knew I was hurt immediately. [sic throughout]

Four days after his release, the complainant saw a doctor and reported his injuries. On May 7, 2001, a second doctor provided a medical report indicating that the complainant had suffered torn rotator cuff injuries to both shoulders and a broken bone in his left shoulder. A third doctor's report, dated September 19, 2001, indicates that surgery is required to repair the injuries followed by a period of rehabilitation of approximately two years.

The complainant states repeatedly that he "feels" that it was one of the arresting officers who caused the injury to his shoulders. However, he candidly states that his face was always turned down and away and he did not see who specifically pulled up his arms. The complainant reviewed a photo lineup and was able to identify Member A and Member B as the two arresting officers. However, he was not able to say who assaulted him: "I don't know who done [sic] it here. I never seen [sic] any of them. I was face down. You're right I can't identify any of them." At no time did the complainant convincingly identify the officer who caused his injuries.

In May 2001, the public complaint investigator reviewed the duty roster to determine which members may have been present at the time. As a result, he interviewed members who were on duty and matched the general description provided by the complainant. Member C was the watch commander on August 17, 1999. In his investigation report, the public complaint investigator advised that Member C "has no recollection whatsoever of these events in [sic] the night in question. He states that nothing untoward was brought to his attention and that he would have been aware if anything this major had taken place in his cell block."

Member D was contacted by the public complaint investigator, but the latter advised: "he had transferred off that Watch well prior to the date in question." Member E and Member F were interviewed and neither had any recollection of this incident. The complainant called the investigator on May 3, 2001 to report that he had seen one of the officers who had assaulted him at court and provided the name of Member G. Member G was interviewed and indicated that he "has never been assigned to [that] watch and was not on duty the night these alleged offences took place." All of these officers were ruled out as potential suspects in the assault on the complainant.

The cell block guard indicates that he had no recollection of the complainant being assaulted by RCMP Act members. The guard kept a prisoner log that notes the complainant was banging on his cell door between 22:15 and 23:17. The log indicates that at 06:34, a second guard assumed duties as cell block guard. The second guard was not interviewed. In my opinion, this is a significant omission in the investigation. In his statement, the complainant indicates that while in the cells, one of the night watchmen felt so sorry for him because of his shoulders that he allowed him to take a shower for about an hour. This witness may have corroborated some aspects of the complainant's allegation.

The public complaint investigator notes in his investigative report: "The only two remaining Members that are still at [the] Detachment and were on duty that night [.] are [Members] [E] and [F]." I conclude from this statement that the public complaint investigator only interviewed members who were still at the detachment. There may have been other members on duty who were not interviewed because they were no longer at the detachment. Given that the public complaint investigator was conducting his investigation more than 18 months after the incident, these members should have been identified and interviewed.

The RCMP Act's letter of disposition dismisses the allegations of assault basically because the members did not recollect them:

[...] [Members] [A] and [B] have been questioned about this incident and none have any recollection of you being treated in such a violent manner. The guard on duty that evening took detailed notes of the occurrence in the cell block. There is no notation of such an occurrence, and he states emphatically that he would have known had this sort of violent behaviour taken place. Considering all the foregoing, I am unable to support this allegation.

In addition, the public complaint investigator concludes in his investigation report that failure to identify the member responsible for this assault means the allegation of assault is unsubstantiated. Also, the public complaint investigator concludes:

[...] there is no definitive proof that the injuries he has suffered to his rotator cuffs actually happened that night in. cells. Given this lack of corroborating evidence to support the complainant's allegation of statutory assault, this allegation should be deemed unsubstantiated.

There are three problems with this conclusion: firstly, "definitive proof" is not the standard of proof for complaints. Secondly, complainants are not required to corroborate their allegations. Thirdly, the nature of the injuries corroborates the allegation.

Corroboration is important in this case. In my opinion, both sides have credibility problems. The complainant has a significant criminal record. He admits to calling his wife in contravention of his release conditions, although he initially lied to the police claiming she called him. He admits to calling one of the members "an asshole" and behaving in a disorderly fashion. He admits to struggling free and kicking the Plexiglas "silent patrolman." He cannot recall accurately how many members or how many vehicles attended his home to arrest him. The complainant's account of these events, by itself, does not carry sufficient weight to discharge his burden of proof.

The RCMP Act members also have difficulty with credibility. There is no indication that the complainant was under the influence of drugs or alcohol at the time of his arrest. Member B confirms that the complainant was handcuffed behind the back when he was taken to ground. Failure by either Member A or Member B to recall whether or not the complainant was "hog-tied" is not credible. Both members may have overreacted to the complainant calling one of them "an asshole." The collective failure by the detachment to recall which members were on hand to assist is simply not credible.

Independent corroborative evidence exists in this case. The unique nature of the injuries suffered by the complainant tends to corroborate his allegation. A torn rotator cuff is not a common injury. To sustain severe hyperextension of both shoulders and a broken bone in one, at the same time, is extraordinary, and hard to imagine. If the complainant was not injured as he described, then how did he sustain these injuries? There is no evidence of pre-existing injury. Having reviewed independent medical evidence obtained by the Commission, I have concluded that the injuries are consistent with the description offered by the complainant. Any suggestion that the complainant suffered these injuries between release and attendance at a doctor's office four days later is too remote to be given serious consideration.

Upon release, he sought medical attention at the first opportunity. He reported to a physician that the police beat him. His injuries appear to correspond with his description of how he sustained those injuries. The medical reports do not indicate any inconsistency between the injury and the complainant's description of how it occurred. Therefore, I conclude, on the balance of probabilities, that the complainant sustained his shoulder injuries at the RCMP Act detachment on August 17, 1999.

The complainant has raised a prima facie case that he was injured while in RCMP Act custody. His allegation is corroborated by the nature of his injuries and possesses sufficient weight to shift the onus to the members to explain their conduct. The members' denials and failure to recall the incident do not provide any explanation and do not satisfy the requirement to explain how a prisoner came to be seriously injured while in RCMP Act custody.

With respect to the allegations of assault and excessive use of force at the residence and in the prisoner bay, I am mindful that responding to domestic abuse situations is fraught with peril for police officers. Member A interviewed the complainant's wife and no doubt she advised him that the complainant was capable of violence. The Report to Crown Counsel describing the incidents of June 28, 1999 as well as the complainant's wife's statement confirm the complainant as an unpredictable, volatile and extremely violent individual. Further, the complainant's criminal record, of which I assume the officers were aware, contains entries for violence, weapons, drug and alcohol abuse, resisting arrest and escaping custody. The complainant falls into a category of suspects whose arrest represents a potentially dangerous situation for the police.

Under these circumstances, it would be reasonable for Member A and Member B to approach the complainant with a heightened sense of vigilance and concern for their personal safety. To ensure their personal safety the officers must respond to any indication of violence. When the complainant lost his temper and called Member A an asshole he initiated the escalation of preventative tactics by the officers. The evidence about what happened next is contradictory and does not confirm or refute the allegation that the members used excessive force during his arrest and removal from the cruiser.

Third Allegation: The RCMP Act failed to provide the complainant with access to counsel.

Member A indicates that upon arrest the complainant was read his Charter rights and cautioned. The complainant fails to indicate when he asked for the opportunity to speak to counsel. In any event, cell block officers facilitated his right to counsel with calls to two different lawyers at 08:00 and 08:16. The RCMP Act members who dealt with the complainant advised him of his rights and facilitated the exercise of those rights.

Finding: The RCMP Act did facilitate the complainant's access to counsel.

Fourth Allegation: The Vernon RCMP Act Detachment did not properly care for the complainant while he was in custody.

This allegation is canvassed in the discussion relating to the first and second allegations, above.

Finding: The RCMP Act members failed to properly care for the complainant while he was in their custody.

Fifth Allegation: The RCMP Act failed to provide the complainant with his Charter rights or caution him.

Member A indicates that upon arrest, he read the complainant his Charter rights and cautioned him. As previously indicated, I accept the evidence of Member A in that regard.

Finding: Member A provided the complainant with his Charter rights and cautioned him.

Sixth Allegation: The RCMP Act failed to secure the complainant's premises after they had arrested him and removed him from his home.

Member B states that he recalls securing the complainant's residence before leaving the scene. Moreover, the complainant states: "[...] one young officer went into the porch and tried to open up the main door into the house but my big dog Leroy was there and basically he almost attacked the Police Officer and he closed the door right away and ah eventually he come [sic] back out."

I accept the statement of Member B that he did secure the premises. However, if he did not because of the dog, that is entirely understandable.

Finding: Member B secured the complainant's premises.

Seventh Allegation: The RCMP Act engaged in oppressive conduct.

The complainant alleged that the RCMP Act engaged in oppressive conduct, as a condition of his release was that he leave the city where the incident occurred and not return.

The complainant was released from custody after signing a Recognizance of Bail, apparently, in the late afternoon of August 19, 1999. This recognizance was canceled and replaced by an amended version on August 26, 1999. The original recognizance of August 19, 1999 was not included in the material. As a result, I am unable to comment on the original wording of the impugned condition. However, the amended condition of August 26, 1999 is included and reads as follows:

(4) You must leave the [city] on or before September 15, 1999 and when you do leave the [city], you are not to be within the municipal limits of the [city] except to appear in Court, to consult with counsel, or to pass through on a highway. You are to notify your Bail Supervisor when you leave [the city].

This condition of release was imposed by a justice of the peace and not by the RCMP Act. The complainant could have instructed his lawyer to oppose the offending condition. In any event, the imposition of conditions in a recognizance of bail is not within the jurisdiction of the RCMP Act.

Finding: The RCMP Act did not act inappropriately in the imposition of conditions on the complainant's recognizance of bail.

Eighth Allegation: Members of the RCMP Act displayed an improper attitude in dealing with the complainant.

As outlined above, RCMP Act members dealt with the complainant in an unacceptable fashion and displayed an improper attitude.

Finding: Members of the RCMP Act displayed an improper attitude in dealing with the complainant.

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

Comment

The handling of this public complaint has been problematic for a number of reasons. Firstly, the incident took place on June 28, 1999 but the complainant did not complain to the Commission until September 12, 2000, over fourteen months later. I agree with the public complaint investigator that the delay in making a complaint "presents a considerable obstacle from an investigative point of view since the memories of all involved have faded and, in particular, cell block video tapes that may have provided some conclusive evidence had long since been erased." The RCMP Act reported the results of its investigation on July 10, 2001. The complainant asked the Commission to review the investigation on December 28, 2001.

Secondly, it has taken the Commission about four and a half years to complete its review. This is completely unacceptable and such delays undermine the legitimacy of civilian oversight. On behalf of the Commission, I apologize to the complainant and the members for our neglect in this regard. I can assure the complainant and the members that the new Chair of the Commission has implemented an aggressive program to eliminate the chronic backlog at the Commission so that such an unacceptable delay will not happen in the future.

Finally, the results of the RCMP Act investigation have been less than satisfactory. Four days after his release from cells, the complainant complained to his doctor that his shoulders had been injured (ripped out) by the RCMP Act. The medical evidence confirms that the complainant suffered torn rotator cuff injuries to both his shoulders and a broken bone to his left shoulder. A rotator cuff injury to one shoulder is not infrequent but a rotator cuff injury to both shoulders is very infrequent and therefore noteworthy. Our medical report concluded that the complainant had a "very forceful distraction type of stress" and the "extent of his tears would likely have been full thickness or complete tears of the rotator cuffs." Such an injury is consistent with the complainant's evidence that while his arms were handcuffed behind him, a member pulled up on the handcuffs until his shoulders ripped out.

The complainant states that four members were involved in this incident although he cannot identify them. Member A, who transported the complainant to the detachment, indicated that he called ahead for assistance because the complainant was very angry, very combative, wanted to fight with the police and wanted to take a round out of him. Member A indicated that Member B and as many as two other police officers assisted him when he arrived at the detachment. Neither Member A nor Member B recalled who those other officers were and the RCMP Act investigation was not able to determine their identity.^[2]

The complainant suffered very serious and somewhat unique injuries. His allegation that these injuries were intentionally inflicted by a member while he was in custody is extremely serious. The medical evidence is consistent with the complainant's version of events. Given these factors, an investigation that does not determine how the complainant was injured and by whom, leaves a cloud of suspicion hanging over the RCMP Act detachment where the incident occurred and undermines the public complaint process, the current model of civilian oversight. I have not made any recommendations in this report. However, if the Commissioner agrees with my findings, he may be able to take action to address the issues raised in this report.

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Vice-Chair's Final Report After Commissioner's Notice

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Commission for Public Complaints Against the RCMP Act

RCMP Act Paragraph 45.42(3)(a)

September 26, 2006

In this case, the complainant sustained serious shoulder injuries while in custody, when one or more members of the RCMP Act in British Columbia resorted to excessive force.

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

Part VII of the RCMP Act requires the Chair to review the RCMP Act's disposition of a complaint on request from a dissatisfied complainant. The RCMP Act is then required to provide the Chair with information relevant to the complaint. Based on a review of the material relevant to the complaint, the Chair or his delegate, the Vice-Chair, may prepare an interim report setting out findings and recommendations. As specified in the RCMP Act, the interim report is then sent to the Commissioner of the RCMP Act and the Minister of Public Safety and Emergency Preparedness.

When the Chair sends an interim report to the Commissioner, the Commissioner is required to review the complaint in light of the findings and recommendations set out in the interim report. The Commissioner must then notify the Chair of any further action that has been or will be taken with respect to the complaint and, when the Commissioner decides not to act on any of the Chair's findings or recommendations, the Commissioner must include the reasons for this decision.

After considering the Commissioner's Notice, the Chair is required to prepare a final report setting out findings and recommendations with respect to the complaint. The final report is sent to all parties.

In the present case an Interim Report after Review was sent to the Commissioner and the Minister of Public Safety and Emergency Preparedness.

In a letter the Commissioner provided his notice on the findings made in the Interim Report.

I note that the Commissioner fully supports the Commission's findings. As stated in the Interim Report, the Commission chose not to make any recommendations. However, it is clear that the Commissioner is also concerned about the extremely poor quality of the public complaint investigation and, as a result, is taking steps to ensure that "all future public complaint investigations are carried out thoroughly to prevent any reoccurrence." The Commissioner has committed to ensuring that the Commanding Officer of "E" Division is aware of his concerns as they relate to this complaint and will be asking her to ensure that "[.] the members involved, including the public complaint investigator, are provided with operational guidance with respect to contemporaneous note-taking and the importance of carrying out thorough investigations." I trust that the Commissioner's actions in respect of this complaint will have considerable impact on the public complaint process and on the members involved in the incidents as described.

After considering the Commissioner's Notice, I am submitting my report pursuant to subsection 45.46(3) of the RCMP Act. Please note that this constitutes my final report and, accordingly, the Commission's mandate in this matter is ended and no further action will be taken.

___________________________
Vice-Chair

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Extracts of Commissioner's Notice

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Commission for Public Complaints Against the RCMP Act

After a careful review of all relevant material, I am in agreement with your finding that [the complainant] sustained serious shoulder injuries while he was in custody at the RCMP Act detachment and that these injuries were caused by one or more unidentified members who used excessive force when handling him.

Although I am somewhat concerned with the four-day lapse between the time [the complainant] was released and the time that he was diagnosed by a physician, I am much more concerned with the extreme poor quality of the subsequent internal investigation. It is disconcerting that:

• key witnesses, such as the second cell guard and the two other members at the scene, were not interviewed,
• little or no effort seems to have been made to identify these two other members,
• the prisoner log has no entries for a twenty-four hour period,
• contemporaneous notes were not taken by the members involved, and
• they did not remember whether or not [the complainant] had been hog-tied.

Let me assure you that this investigation does not in any way reflect the standard expected of a member of the RCMP Act, and for these reasons I am inclined to lend more credence to [the complainant's] version than that of our members. Unfortunately, given the passing of time, I am now statute-barred from proceeding with any disciplinary measures regarding this unacceptable act. Had the complainant not refused to proceed with criminal charges from the outset, you could be certain that I would have encouraged such action.

As far as your findings that the RCMP Act members failed to properly care for [the complainant] and that they displayed an improper attitude towards him while he was in their custody, I have found no indication in the relevant material to show that such was in fact the case. If, on the other hand, these findings refer to [the complainant's] injuries, then that matter has already been dealt with.

For the same apparent reasons that have led you to your findings, I agree that:

• [the members did not use] excessive force during the arrest of [the complainant] or his removal from the police cruiser;
• the RCMP Act did facilitate [the complainant's] access to counsel;
• [a member] provided [the complainant] with his Charter rights and cautioned him;
• [a member] secured [the complainant's] premises and;
• the RCMP Act did not act inappropriately in the imposition of conditions on [the complainant's] Recognizance of Bail.

In light of the foregoing I assure you that the Commanding Officer of [the] Division will be apprised of this case. I will ask her to take the necessary steps to ensure that all future public complaint investigations are carried out thoroughly to prevent any reoccurrence. I will also ask her to ensure that the members involved, including the public complaint investigator, are provided operational guidance with respect to contemporaneous note-taking and the importance of carrying out thorough investigations.

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

^[1] "Hog-tied" describes a procedure where a violent, uncontrollable prisoner is handcuffed, behind the back, his ankles bound with plastic lock wrap, and the handcuffs and ankle restraint linked together with a second piece of lock wrap. This procedure renders the prisoner incapable of significant movement.

^[2] Memorandum dated 2001-06-06 at p. 3.