Vice-Chair's Interim Report – Incident Related to Improper Arrest and Irregularity in Procedure

RCMP Act Paragraph 45.42(3)(a)

Vetted version for posting

July 10, 2008

Overview

In the early evening of October 31, 2006, Ms. B dialled 911 and reported that she had been assaulted by her husband, Mr. A. Constable D of the North Vancouver RCMP Detachment responded and arrested Mr. A for assault. Constable C placed Mr. A in the back of a police vehicle. The members continued to investigate, including an interview with Ms. B. After consulting with a supervisor, the members arrested Mr. A for disturbing the peace, rather than assault, and brought him to the detachment where he was once again arrested for assault and lodged in cells. He was given access to a lawyer over seven hours later, and he was released without charges about 22 hours later.

On November 2, 2006, Mr. A complained to the Commission for Public Complaints Against the RCMP (the Commission) and alleged, among other things, that Constables C and D arrested him without grounds, and that other members of the North Vancouver RCMP Detachment denied him access to counsel and improperly detained him.

As required by the RCMP Act (the Act), the complaint was investigated by the RCMP. 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 Commissioner's Final Report, dated January 8, 2008, supported only one of the complainant's allegations (mishandling of his personal property).

Mr. A was not satisfied with the RCMP's disposition of his complaint. The Commission received Mr. A's request for review on January 17, 2008. The Commission received from the RCMP the investigation documents relating to this file on March 5, 2008.

For the reasons outlined below, the evidence leads me to conclude that Constables D and C did not have reasonable grounds to arrest Mr. A, that Mr. A was not provided with his right to a lawyer without delay and that it was unreasonable to detain Mr. A for 22 hours before releasing him without charges.

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 for either the complainant or 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 detailed examination of the complaint and investigation documents. These include statements from Mr. A, Ms. B, Inspector E, Staff Sergeant F, Constables C, D, G and H, Auxiliary Constable J and Guard K; notes from Constables C and D; the prisoner log; and the investigation file.

First Allegation: Constables D and C lacked reasonable grounds to arrest Mr. A.

On October 31, 2006, Ms. B dialled 911 and reported she was assaulted by her husband, Mr. A. She reported that he grabbed her chin and slapped her in the face, and also pinched her eyes. At the time of her call, it was noted that Ms. B had slurred speech and sounded intoxicated. Within minutes, Constable D attended the scene and was greeted by Ms. B.

Ms. B told Constable D that she had been punched in the face, and Constable D said that he noticed a slight redness over her right cheek. Mr. A was found by Constable D sleeping in his bed in the adjacent room. Ms. B demanded that her husband be removed from the residence, and Constable D attempted to wake up the complainant. After a few attempts, Mr. A finally woke up and complained he was suffering from a migraine.

Constable D explained to Mr. A why a police officer was in his residence, at which point, according to Constable D, Mr. A became belligerent and argumentative. Because of his demeanour and fearing for everyone's safety, Constable D arrested the complainant for assault, handcuffed him and took him to the police car. Constable C and Auxiliary Constable J arrived.

The RCMP received a 911 from Ms. B alleging that she had been assaulted by Mr. A. The British Columbia Attorney General's Policy on Violence Against Women in Relationships as well as RCMP policy make it clear that such allegations must be taken seriously. The members had a duty as police officers to investigate the allegation. When the members arrived, Ms. B appeared to be intoxicated and Mr. A, asleep. Even though the members explained to Mr. A why they were in his house, when they woke him up, it is not surprising that he was upset and argumentative. As the members were unaware of the circumstances surrounding the allegation and were faced with a potential domestic violence situation where one party was argumentative while the other party was intoxicated, a prudent response was to separate the parties while the members investigated the allegation. Mr. A was arrested for assault, handcuffed and taken to the police cruiser.

The members continued their investigation. Upon re-entering the residence, Constable C observed that there were no physical marks on Ms. B to support her allegation that she had been grabbed, slapped, punched and pinched on the face. She noted that Ms. B was intoxicated and had slurred speech. Ms. B indicated that she had been on psychiatric medication and she refused to provide a statement regarding the alleged assault. When the members arrived, Mr. A was found sleeping in his bed, which contradicted Ms. B's alleged emergency when she dialled 911. Given this evidence, I am satisfied that members did not have reasonable grounds to arrest Mr. A for assault.

The members contacted their supervisor for direction. Even though he had originally been arrested for assault, Mr. A was now arrested by Constable C for disturbing the peace. Section 175 of the Criminal Code provides that a person causes a disturbance when shouting, screaming, swearing, using obscene language, when drunk, and when indecent in a public place. Mr. A was not in a public place but was in his home asleep. Based on this evidence, I am satisfied that the members did not have reasonable grounds to arrest Mr. A for disturbing the peace.

Constable C brought Mr. A to the detachment cells and booked him with the assistance of Inspector E. At this time, a short discussion ensued during which Mr. A argued he had been arrested for disturbing the peace. Inspector E told the complainant that he believed he had been arrested for domestic assault and, after their short exchange, Constable C informed the complainant that he was now arrested for domestic assault. As I have indicated above, the members did not have reasonable grounds to arrest Mr. A for assault the first time and there was no additional information to justify his arrest for assault a second time.

Constable C indicated that she feared for Ms. B's safety as well as the potential violence in the event Mr. A was released. Her concerns in this regard could have been addressed without arresting Mr. A and keeping him in custody for 22 hours before releasing him without charges.

Finding: Constables D and C did not have reasonable grounds to arrest Mr. A for assault or for disturbing the peace.

Second Allegation: Inspector E and Constable C failed to provide Mr. A with access to legal counsel without delay.

Mr. A said that once he was admitted to cells, he repeatedly requested to talk to a lawyer. He said that all members within the cell block area denied him his right to counsel and that it was only much later, during the early morning of November 1, 2006, that he was given the opportunity to talk to a lawyer. Staff Sergeant F, along with other members, said that the complainant was belligerent, argumentative, combative and aggressive. Staff Sergeant F argued that, for the safety of the members in the cell block area, the complainant would be given access to counsel once he had calmed down. He said that it was only at approximately 5:30 a.m., when Constables G and C attended the complainant's cell, that Mr. A had calmed down, and that at that time the complainant was given the opportunity to contact counsel.

The Commission reviewed the cell block video recording. The recording confirmed that Mr. A was argumentative but it does not, in my view, support the proposition that he was combative. The public complaint investigator also reviewed the cell block video but failed to document in the report how he believed Mr. A was combative. He did mention, however, that Inspector E and Constable C been patient with the complainant during the booking process, and how Mr. A kept arguing legal issues with them.

Once a person has been arrested for an offence and has been given proper notice, section 10(b) of the Charter provides that the individual has the right to retain counsel without delay. In this case, the evidence showed that Mr. A was provided access to counsel only after seven and a half hours of incarceration. All members involved justified this delay by arguing that Mr. A was aggressive and combative with them. The video evidence supported the members' claim that the complainant was argumentative; however, it did not support the allegation that the complainant was aggressive or combative.

Mr. A was asleep in his house when the RCMP woke him up, arrested him for assault, handcuffed him, took him to the police car in his long underwear, then arrested him for disturbing the peace, then at the detachment arrested him a second time for assault, all based on the bald allegation of an intoxicated Ms. B who refused to provide a statement and who acknowledged that she had been on psychiatric medication. It is understandable that Mr. A would be upset and would want to talk to a lawyer. In fact, there were signs on the walls of the cell block area that informed detainees of their right to speak to counsel without delay. It was reasonable for Mr. A to demand that he be allowed to speak to a lawyer right away. Given the circumstance, it is understandable that Mr. A might be very vocal in demanding his right to counsel.

In my view, given the circumstances of this case, not allowing Mr. A to talk to a lawyer for over seven hours after he was arrested was unreasonable and a denial of his right to counsel without delay. I find that Inspector E, Constable C and Staff Sergeant F failed to provide Mr. A with access to counsel without delay.

Finding: It took the RCMP too long to provide Mr. A with an opportunity to speak to a lawyer so he was denied his Charter right to counsel without delay.

Third Allegation: Inspector E and Constable C improperly detained Mr. A in custody for 22 hours.

Section 503(1) of the Criminal Code states that where a justice is available within a period of 24 hours after the person has been arrested "[...] the person shall be taken before a justice without unreasonable delay and in any event within that period." In large urban communities such as North Vancouver, justices are readily available, and there was nothing in the relevant materials to suggest that a justice was not available on the evening in question. Therefore, section 503(1) required that Mr. A be brought before a justice without unreasonable delay. The Manitoba Court of Appeal held that 24 hours merely establishes the outer limit of permissible detention. In that case, a detention of more than six hours was unlawful and violated section 9 of the Charter.

In my view, in addition to the obligation imposed by the Criminal Code, given the lack of evidence supporting the assault allegation, the RCMP had an added duty to investigate this matter quickly and then take Mr. A before a justice or release him. Mr. A was admitted to cells on assault charges at approximately 9:30 p.m. Ms. B had initially refused to provide a statement. At 6:50 a.m., Constable C attempted unsuccessfully to contact Ms. B in order to obtain a statement. No further attempts were made to contact Ms. B until about 12 hours later when Constable C returned to work for her next shift. In my view, given the circumstances of this case, this was an inadequate response by the RCMP. Ms. B again refused to provide a statement and Mr. A was released without charges at 6:55 p.m., about 22 hours after he was arrested. Given the circumstances of this case, I am satisfied that it was unreasonable to detain Mr. A for 22 hours.

Finding: Mr. A was not taken before a justice without reasonable delay as required by the Criminal Code, and it was unreasonable to detain Mr. A for 22 hours before releasing him without charges.

Fourth Allegation: Constables D and C improperly and without authority seized Mr. A's expandable baton while they were inside his residence.

While in the complainant's residence, Ms. B asked Constable D to take away the complainant's expandable baton, which was believed to be a prohibited weapon. Because of the alleged assault and the mistaken belief that the baton was a prohibited weapon, Constable D seized it and Constable C returned it to the detachment.

The RCMP's Final Report concluded that Constable D and Constable C improperly seized the baton, mistakenly believing that it was a prohibited weapon. The baton was subsequently returned to the complainant, and both constables received refresher training with regards to what constitutes prohibited and restricted weapons under the law. Given the foregoing, and although the baton was seized without authority, I am satisfied that the RCMP properly disposed of this allegation.

Finding: Constables D and C improperly seized the complainant's baton. However, I am satisfied with the RCMP's disposition of this allegation.

Fifth Allegation: Constable C improperly transported Mr. A to RCMP cells while he was dressed in his long underwear, and failed to provide him with proper clothing to cover up.

Mr. A argued that he was transported to the North Vancouver RCMP Detachment while he was in his long underwear, and he complained that Constable C failed to provide him with proper clothing.

Constable C said that once she re-entered the residence to talk to Ms. B, she asked that Mr. A's clothing be brought to her. She specifically asked Ms. B to give her clothing so that Mr. A could be adequately covered when he would be brought to the detachment. Although Constable C wrongly believed that Mr. A could be a potential risk, it was reasonable for her to wait until they got to the detachment to offer the complainant his clothes. The video evidence also confirmed that Mr. A was clothed when he was in cells.

There was no evidence to suggest that the complainant was seen by any individual while he was in the back of the police vehicle, and although I can sympathize with him, I find Constable C acted appropriately in the circumstances.

Finding: Constable C acted appropriately when she requested the complainant's clothes from Ms. B, and it was reasonable for her to wait until they reached the detachment to provide Mr. A with his clothes.

Sixth Allegation: Inspector E and Constable C failed to have grounds to fingerprint and photograph Mr. A.

Section 2 of the Identification of Criminals Act requires that individuals charged with indictable offences be fingerprinted and photographed. Given the fact that the Commission determined that Constables D and C's arrest of Mr. A was improper, there was no need for the complainant to provide a photograph or his fingerprints during his booking. Because of the improper arrest, I am satisfied that Inspector E and Constable C lacked the requisite grounds to fingerprint and photograph Mr. A.

Finding: Inspector E and Constable C lacked the requisite grounds to fingerprint and photograph Mr. A.

Seventh Allegation: Members of the RCMP denied Mr. A's request for medical attention while he was incarcerated.

Mr. A said he suffered from a severe headache while he was incarcerated and that he was denied proper medical attention. The evidence revealed that a qualified first aid cell guard interviewed and questioned the complainant on his symptoms. The guard obtained a second opinion from a nurse from a 24-hour emergency line, and it was determined that monitoring the complainant's symptoms throughout his incarceration would be sufficient in the circumstances. Because of this, I am satisfied that Mr. A received proper medical attention during his incarceration.

Finding: Mr. A received proper medical attention during his incarceration.

Eighth Allegation: The cell guard made inappropriate comments concerning Mr. A during his incarceration.

In its Final Report, the RCMP stated that cell guards were municipal employees not subject to complaints under Part VII of the Act. Because of this, the RCMP concluded that it did not have the authority to review the alleged improper conduct, but was satisfied that the improprieties were brought to the attention of the cell guard's supervisor.

The complainant said that a cell guard, without naming him, had told him he had been trained to treat people with mental illness. The cell block video recorded someone call Mr. A a "rubber head", to which Constable G explained to Mr. A that this meant someone who did not listen and did not imply an accusation that the complainant was suffering from a mental disorder.

In its Final Report, the RCMP concluded that, although the comment had not been made in a negative fashion, it was inappropriate for someone to have said those words. The improprieties were brought to the civilian guard's attention as well as the appropriate supervisor. Given this, I am satisfied with the RCMP's disposition of the allegation.

Finding: The cell guard inappropriately called Mr. A a "rubber head", and both he and his supervisor were made aware of the improprieties. The Commission is satisfied with the RCMP's disposition of this allegation.

Ninth Allegation: Inspector E threatened Mr. A while he was in cells.

The complainant said Inspector E threatened that he would be incarcerated without charges after he declined to provide his photograph during his booking. Inspector E denied threatening the complainant. Given the evidence, I cannot make a determination relative to this allegation.

Finding: Based on the evidence, I am not able to make a finding on this allegation.

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

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Brooke McNabb
Vice-Chair