Review of the RCMP's Public Complaint Records
Part Two:
Trend Analysis: Findings and Recommendations in the Commission's Interim Reports
The first part of this report focused on the "front end" of the complaint system, specifically the intake and investigation of public complaints. This section of the report focuses on the "back end" of the public complaint system, when a complainant is dissatisfied with the RCMP disposition of their complaint and requests a review by the Commission. If the Commission, after reviewing the file, decides that the disposition of the complaint by the RCMP and/or the conduct of the RCMP member(s) were inappropriate, an adverse finding will be made and an Interim Report will be issued.
The objective of this analysis was to determine existing trends in the findings and recommendations made by the Commission submitted to the RCMP Commissioner and to establish if there were any discernable trends in the Commissioner's response to the Interim Reports. For the 2007 calendar year, the Commission issued 215 reports in response to complainants' requests for review. Of these, 191 (89%) were satisfied reports and 24 (11%) were interim reports (where adverse findings were made). A preliminary analysis of the Interim Reports identified several trends in the Commission's findings and recommendations.
Allegations
Three main trends in public complaints were observed in the 2007 Interim Reports. The most common complaint was a perceived neglect of duty; complainants articulated that an RCMP member failed to fully carry out his/her duties. The next most common complaint related to improper use of force, specifically excessive force, which often flowed from arrests. The third most common complaint related to allegations that RCMP members displayed an improper attitude in their interactions with the public.
Methodology
Data for the trend analysis were extracted from the Interim Reports for the 2007 calendar year that were signed by the Chair or the Vice-Chair.
Allegations
The allegations addressed by the RCMP were categorized according to their current classification of complaints system.33 These classifications, for the purposes of this report, are mutually exclusive, meaning that each allegation could be placed in only one category.
Commission's Findings and Recommendations
In response to the allegations, the Commission makes "supported" or "adverse" findings in the Interim Reports. For the purpose of the trend analysis, supported findings can be understood as those where the Commission found that the conduct of the subject member(s)34 was proper in that it met RCMP professional standards and/or was consistent with RCMP policy/operational guidelines. Adverse findings, on the other hand, includes those where the Commission found that the conduct of the subject member(s) was improper in that it did not meet RCMP professional standards, and/or was in conflict with RCMP policy/operational guidelines. In instances where the Commission disagreed with the member's conduct, but agreed with the RCMP's disposition of the complaint, the finding was coded as "adverse".
Classification of Complaints
In the 24 Interim Reports, 62 allegations were made against members of the RCMP. In total, 10 (63%) out of the 16 complaint classifications were represented in the allegations, suggesting that complainants identified a wide range of what they perceived was improper conduct by the RCMP. "Neglect of Duty" was the most common classification, accounting for 30% of the allegations. The next most common classification was "Improper Use of Force" (20%), followed by "Improper Attitude" (18%), "Improper Arrest" (10%), "Oppressive Conduct" (8%), "Irregularity in Procedure" (5%), "Driving Irregularity" (3%), "Mishandling of Property" (2%), "Improper Persons/Vehicles Search" (2%) and "Improper Search of Premises" (2%).
Figure 14: Classification of Complaints in Interim Reports for 2007
The Commission made 102 findings in response to the 62 allegations.35 Of these findings, 55 (54%) were satisfied (the Commission agreed with the RCMP's disposition of the allegation); and 47 (46%) were adverse (the Commission disagreed with the RCMP's disposition of the allegation).
Figure 15: Outcome of the Commission's Findings for 2007 Interim Reports
In total, 40 recommendations were made to the RCMP Commissioner based on the Commission's adverse findings, which could be broken into four themes:
- (1) Operational guidance/training (54%);
- (2) Amendment/development of policy and/or operations (24%);
- (3) Investigation of the complaint by the RCMP (in cases where the Commission found that the termination of the investigation was improper) (11%); and
- (4) Member apology (11%).
Figure 16: Breakdown of Commission's Recommendations
Neglect of Duty
The largest proportion of allegations related to neglect of duty, a broad category encompassing claims that members failed to perform a service or duty or performed a duty in a manner that was contrary to RCMP standards. In general, the allegations pertained to inadequate investigations, improper care and handling of prisoners, failure to provide medical care, and deficient reporting.
In one case, the complainant alleged that members neglected their duty while transporting prisoners, one of them being the complainant's grandson. The complainant noted that the prisoners were left in the transport van for a lengthy period of time while the RCMP waited for the tow truck to arrive. When the tow truck arrived, her grandson and the other prisoners were left in the van when it was being towed out of the ditch. On the issue of whether the members neglected their duty by leaving the prisoners in the van while waiting for the tow truck to arrive, the Commission found that the members did not neglect their duty and that it was acceptable to leave them in the van given the inclement weather conditions. However, the Commission made an adverse finding with respect to leaving the passengers in the van while it was being towed, stating that it could have resulted in serious injury to the passengers. The Commission recommended that the members receive operational guidance on what to do when they are transporting prisoners and the vehicle is involved in an accident.
In another case, the complainant alleged that a member prepared a violation ticket that had errors with respect to ownership and licence plate. The Commission ruled adversely in this case, finding that the ticket contained the named errors, and recommended that the member's supervisor take the appropriate corrective action, if it had not already been taken, and ensure that the subject member was aware of the importance of properly recording facts related to an alleged infraction.
An example of an allegation of neglect of duty in which the Commission supported the RCMP's findings in the first instance dealt with the issue of whether the subject members provided appropriate care to the complainant while in custody. The complainant alleged that he was left to stand outside in the cold without adequate clothing while members searched his vehicle. The members claimed that the complainant was permitted to wait inside the police vehicle during the search. The Commission found that the evidence of the members was more consistent that that of the complainant, and therefore, found that the RCMP members did not neglect their duty and had provided appropriate care to the complainant while in custody.
The Commission made more findings that were in support of the members' conduct (65%) rather than not (35%) in cases of alleged neglect of duty.
Improper Use of Force
The second largest proportion of allegations related to improper use of force, specifically excessive force. In these cases, the use of excessive force during arrests was a common theme. Excessive force was alleged in instances where members deployed a conducted energy weapon (CEW), and used empty hand (hard) techniques such as punches and restraint methods, including the carotid control technique.
In one case, the complainant alleged that the member used excessive force while restraining him at the hospital. The Commission made an adverse finding on this issue, stating that the use of the carotid control was excessive and contrary to RCMP operational policy. RCMP policy on the carotid control technique limits its use to situations where a person's life is threatened. The Commission found no evidence that the actions of the complainant constituted a threat to anyone's life; therefore, the technique should not have been used and amounted to excessive force under the circumstances.
In another case, the complainant alleged that a member improperly used a CEW on him inside the detachment cell area. The Commission made an adverse finding, explaining that the deployment of the CEW was excessive by virtue of the unlawful arrest. However, the Commission was not prepared to make an adverse finding in relation to the force used on the complainant, who was described by members as combative and uncontrollable. The Commission recommended that the member be provided with operational guidance surrounding the RCMP's policy on the deployment of CEWs in the context of the Incident Management/Intervention Model (IM/IM).
In a third case, also involving a CEW, the complainant alleged that the members used excessive force during his arrest by deploying the CEW three times and kicking him. The Commission made two separate findings, one being supported and the other being adverse. The rationale for the supported finding was that the initial deployment of the CEW was reasonable and consistent with RCMP policy. However, it was considered excessive to continue to deploy the CEW and kick the complainant because following the first CEW deployment, the complainant was neither resistant nor combative, and no longer posed a great physical threat.
For Improper Use of Force allegations, the Commission was more likely to make adverse findings (67%) than supported (33%). The Commission made supported findings when the force used by members was reasonable in the circumstances and consistent with RCMP policy. Adverse findings, on other hand, were observed in cases where the Commission found the force to be excessive, unreasonable, inconsistent with RCMP policy, or improper by virtue of an improper arrest.
Improper Attitude
There were several allegations pertaining to improper attitude. According to the RCMP's current classification of complaints, improper attitude may be characterized by rude, vulgar, sarcastic, or ridiculing behaviour. Allegations of this type may also make reference to a member's lack of discretion, impartiality, empathy, or concern for someone's welfare. The common theme of this type of allegation was rude and disrespectful comments.
For example, in one case, the complainant alleged that the member commented that the complainant must be a person from the northern part of New Brunswick. Overall, many of these allegations reflected a perceived lack of police professionalism.
Allegations relating to improper attitude had a tendency to be subjective in nature or not well supported and as such, in the vast majority of cases (78%), the Commission found that there was insufficient evidence to maintain the allegations. The Commission made only two adverse findings (22%) when there was sufficient evidence that the members were disrespectful and acted unprofessionally.
Improper Arrest
In five reports, complainants made allegations of improper arrest. Typically, these arrests occurred in private dwellings or immediately following incidents where members making the arrest operated on the assumption of reasonable and probable grounds.
This highlights, to some degree, a lack of knowledge of the legal requirements for arrests. In these instances, the Commission recommended that the member offer an apology to the complainant and/or that the member receive operational guidance with respect to the legal requirements of an arrest, specifically, the requirements for arrests without warrants, the requirement of reasonable and probable grounds, and the necessity for obtaining a Feeney warrant36 when an arrest takes place inside a dwelling-house.
Alternatively, in cases where the Commission made findings in support of the member's actions, it was determined that the arrest was appropriate in the circumstances because there were reasonable and probable grounds to make the arrest.
The Commission made more adverse (63%) than supported (37%) findings regarding the legality of the arrest. Three common themes were identified in the Commission's rationale for the adverse findings of unlawful arrest:
- 1) the members did not have reasonable and probable grounds to make the arrest;
- 2) the members did not have Feeney warrants for arrests on private property; and
- 3) the arrest flowed from an unreasonable search and seizure.
Complaints alleging improper arrest and issues with obtaining a Feeney warrant have been a reoccurring issue observed by the Commission.
Oppressive Conduct
Allegations of oppressive conduct were observed in five reports. Oppressive conduct included harassment via persistent phone calls and looking into a complainant's window, unreasonable exercise of police discretion in recommending charges, initiating a fight, and unreasonable detainment overnight in the cell block.
In the case where the Commission found that the member acted oppressively in charging the complainant with ten offences under the Motor Vehicle Act,the Commission recommended that a senior member provide the subject member with operational guidance regarding the use of police discretion. In the other instance where the Commission decided that the member demonstrated oppressive conduct in holding the complainant overnight in custody, no recommendations were offered to address and/or prevent this behaviour in the future.
Half of the Commission's findings specific to oppressive conduct allegations were adverse, while the other half supported the member's conduct.
Irregularity in Procedure
Complainants made three allegations of irregularity in procedure in two separate reports. These included a member improperly contacting the complainant's lawyer and informing the lawyer that he should speak to the complainant about his anger, and that the RCMP improperly denied a mother access to RCMP files regarding her daughter. In both reports, the Commission made findings in support of the member's conduct, concluding that it was appropriate for the member to contact the complainant's counsel in the circumstances, and that the complainant was rightfully denied access pursuant to the Access to Information and Privacy Acts and she was appropriately referred to submit a request for these documents.
Driving Irregularity
Two allegations in two separate reports were made regarding driving irregularity. In one case, the complainant alleged that the member was driving in a dangerous manner prior to and when stopping the complainant and, in another case, that the member operated a transport van carrying prisoners at a dangerous speed (given the road conditions), which culminated in a single-vehicle accident.
The Commission made three findings regarding these allegations, with two being adverse (67%) and one being supported (33%). The rationale for the adverse findings was that the speed at which the van was travelling was too fast for the weather conditions and unnecessarily placed the passengers and other drivers at risk. The Commission also noted that the vehicle should not have been driven after the accident. Several recommendations were made, including operational guidance on transporting prisoners and what to do when the vehicle is involved in an accident, development of a policy manual to address ground transportation of prisoners, thorough investigations of accidents involving RCMP vehicles, and that vehicles meet safety standards and are equipped for various weather conditions. In the case where the Commission supported the member's conduct, the evidence was insufficient to conclude that the member was driving in a dangerous matter.
Mishandling of Property
Mishandling of property was one of the least frequent types of allegations, occurring only once in the Interim Reports. The complainant alleged that the members seized his vehicle without cause following a traffic stop. During this traffic stop, the drug detection dog indicated a presence of narcotics in the vehicle. Following the vehicle search no narcotics were found, but members discovered $80,000 in cash. The members then arrested the complainant and seized his car as evidence of proceeds of crime and to conduct further searches in a safe and controlled environment.
The Commission made an adverse finding regarding this allegation, concluding that the seizure of the complainant's vehicle was unreasonable and improper in the circumstances. The rationale for the Commission's finding was based on the notion that the search and arrest of the complainant was warrantless. The Commission further stated that the requirements that apply to searches apply equally to seizures. The Commission's recommendation was that the members review the legal requirements for searches and seizures, specifically the requirement of reasonable and probable grounds.
Improper Persons/Vehicles Search
In only one case, an allegation of an improper persons/vehicles search was observed. In the aforementioned case, the complainant also alleged that members improperly searched his vehicle; however, this allegation was not separately addressed in the Interim Report.
Improper Search of Premises
This type of allegation was observed only once, where the complainant alleged improper search of premises when the member unlawfully entered his dwelling to arrest him for an outstanding warrant. The Commission made an adverse finding in this case, stating that the member did not have the proper authorization to enter the complainant's house. As reflected in the Commission's recommendations, this case points to the importance of educating members on the authority of different types of warrants, and specifically, the limited use of Feeney warrants, which authorize police to enter a private dwelling to make an arrest.
Commissioner's Notices
The Commission has received 15 (63%) Commissioner's Notices in relation to the 24 Interim Reports signed in 2007. It must be noted that the Commission is concerned, and has expressed such concern repeatedly, that there is a delay in the RCMP issuing Commissioner's Notices for Interim Reports.
Given that the Commission is not in receipt of all the Notices, it is not possible to provide a comprehensive analysis for this time period. In the 15 Commissioner's Notices, 24 adverse findings and 25 recommendations of the Interim Reports were addressed.
Of the 24 adverse findings, the RCMP Commissioner agreed with 19 (79%) of them and disagreed with 5 (21%). Of the 25 recommendations, the Commissioner agreed with 20 (80%) and disagreed with 5 (20%). However, with 37% of the Interim Reports outstanding it is plausible that these figures will change significantly as more Commissioners' Notices are provided to the Commission.
Some of the issues raised in the Interim Reports that the Commissioner disagreed with included: the interpretation of the exception clause in section 497 (Release from custody by peace officer) of the Criminal Code of Canada, RCMP vehicle safety, the attendance of accident investigators in inclement weather, and the protocol for dealing with prisoners when an RCMP transport vehicle is involved in a collision.
33 See Appendix A for a complete list and description of these categories.
34 Subject member refers to the RCMP member (RCMP Commissioner, Commissioned Officers; Non-Commissioned Officers; Special Designations, including Special Constables and Civilian Members) who is the focus of the public complaint.
35 The number of findings exceeds the number of allegations because in some instances, the Commission made more than one finding in response to one allegation.
36 A Feeney warrant, as described in section 529 of the Criminal Code of Canada, is a warrant to enter a private dwelling-house (or other place) to arrest someone; it is required in the absence of exigent circumstances (section 529.3) (i.e. hot pursuit).