RCMP Act - Part VII Subsection 45.45(14)
COMMISSION INTERIM REPORT
18. COMPLAINT CATEGORY 6: MALMO-LEVINE ARREST
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At a demonstration on campus on November 24, police moved forward to investigate a student climbing a flagpole. David Malmo-Levine was arrested when he tried to interfere with the police. The complaint is that RCMP members wrongfully arrested Mr. Malmo-Levine and in carrying out the arrest used excessive force on him and others and infringed his right of expression. |
18.1. The Speak-Out at the Flagpole
At the time of this incident, about 4:15 p.m. to 4:30 p.m. on November 24, the security fence was in place. A few openings had been left to allow passage through, up to the 6:00 p.m. deadline, at which time the fence was to be sealed and the area secured. One of the openings in the fence was near the flagpole. It was just outside this opening where the main demonstration occurred at noon the next day. And it was through this opening, into the soon-to-be-secured area, that 40 to 50 people passed on their way from an APEC Alert teach-in at the Student Union Building to a speak-out that had been planned for the flagpole area. One of those who passed through the opening in the fence was Mr. Malmo-Levine.
At the speak-out, a megaphone was available and the first person to use it invited those who wanted to speak about APEC to come forward in turn and make use of the megaphone.
Many RCMP members were nearby. S/Sgt. Stewart said that some of the Quick Response Teams had been sent with instructions to walk through the secured area, once the openings in the fence had been closed, and make sure no one was left behind. Police dogs and their handlers were on hand to check such spaces as the piping tunnels. Between 20 and 30 police officers were present when the speak-out got underway.
Two or three speakers came forward and used the megaphone. The fourth speaker, Mr. Malmo-Levine, announced he would speak loudly and had no need of the megaphone.
18.2. The Flagpole Climber
About this time, the officers saw James Pond starting to climb up the flagpole above the heads of the crowd. Almost immediately, but individually, S/Sgt. Stewart, Insp. Killaly and Sgt. Ian Ferguson decided to go into the crowd to find out what was happening.
S/Sgt. Stewart emphasized that his concern was the potential difficulty in getting Mr. Pond down from the pole, should he decide to stay. After 6:00 p.m. the area around the flagpole would be sealed off and Mr. Pond would no longer have any right to be there. S/Sgt. Stewart said he assumed that Mr. Pond's intention was to go up the flagpole and stay there. He said: "[a]nd I know from experience, how difficult it is to get a person down from a single pole with nothing around it." He said he was not comfortable with the risk this would pose to the climber and to the officers who would have to deal with him. He testified that his intention in approaching Mr. Pond was not to arrest him, but to suggest that he climb the pole another time.
Sgt. Ferguson expressed similar motivation, as did Insp. Edwards, who was also present. For his part, Insp. Killaly said the flagpole was very slick and he got involved out of concern for Mr. Pond's safety.
A/Comm. Wayne Wawryk, in charge of International Liaison and Protective Policing for the RCMP at headquarters at Ottawa, testified that, with the flagpole area about to become secure, "it wasn't much of an option to let this person go all the way up the pole."
It was Sgt. Ferguson who reached Mr. Pond when he was about four feet off the ground. He took hold of Mr. Pond's foot and they spoke to one another. Soon Mr. Pond came down from the pole.
At the hearing, Mr. Pond said he was an experienced mountain and rock climber and was using appropriate equipment. He said his aim was simply to attach an anti-APEC flag to the pole over the Canadian flag and then come down, though during his conversation with the RCMP he never told them what his plan was. His questions to the RCMP were about whether he was going to be arrested.
Mr. Pond said that the officers he spoke with when he came down from the pole were polite but firm. He said he was told that, if he fell from the pole, his parents might hold the police responsible. He acknowledged to the police that he could understand that and packed up his equipment and left.
Mr. Pond did not file a complaint with this Commission, nor did anyone else file a complaint in respect of Mr. Pond's treatment by the RCMP. The B.C. Civil Liberties Association, however, did say in its closing submission that the reasons the police gave for intervening in Mr. Pond's efforts to climb the flagpole did not justify their actions. According to the Association, the RCMP were not acting in the lawful execution of their duty, and touching Mr. Pond's foot constituted a criminal assault. I do not agree. Rather, I accept the evidence of Insp. Ryan who viewed the video of what happened at the flagpole as Mr. Pond began his ascent and said: "[a]ny police officer observing this activity, I think has to investigate to see what is going on . . . . Police officers are compelled to investigate this kind of activity."
In the circumstances, it was entirely reasonable that the police would walk over and attempt to speak to Mr. Pond and to dissuade him from climbing the pole. Counsel for S/Sgt. Stewart and Sgt. McLaren relied on case law that establishes that, given the RCMP's statutory duty to preserve the peace, they may arrest for breach of the peace where the arresting officer reasonably and honestly believes that a breach of the peace is imminent.
It is not at all clear to me that Mr. Pond's conduct constituted a breach of the peace or that a breach of the peace was imminent. I do not need to pursue that issue, however, because I find that the police were entitled to act as they did on another basis. At common law, the principal duties of police officers are the preservation of the peace, the prevention of crime, and the protection of life and property: R. v. Dedman, [1985] 2 S.C.R. 2. I believe the RCMP were entitled to investigate Mr. Pond's actions and persuade him to climb down from the pole as a corollary of their duty to protect life and property.
In my view, the officers reasonably and honestly believed that Mr. Pond might try to remain atop the flagpole once the area was secured and they were entitled to take steps to prevent that. Given the RCMP's duty to protect life and property, I believe the RCMP would have been in neglect of their duties if they had not intervened.
18.3. Mr. Malmo-Levine
18.3.1. Obstructing police
While the three officers were moving to intervene with Mr. Pond as he began his climb up the flagpole, Mr. Malmo-Levine pushed his way in front, blocking S/Sgt. Stewart from reaching Mr. Pond and blocking Sgt. Ferguson with his arm to the officer's chest. S/Sgt. Stewart explained:
. . . . Sergeant Ferguson still had hold of James Pond's foot, but he was reaching up and his arm was--was almost fully extended. I attempted to push, initially, the person I now know to be David Malmo-Levine, I did not know him then, out of the way.
Q: Did you say anything to him?
A: I believe I said, move out of the way, or move. He immediately resisted.
Q: How did he resist?
A: He took a firm position on the ground and my hand stopped moving. Normally when a person moves with you, your hand continues to move as they move away.
Q: Okay. Did you form any opinion as to-as to what he was, apparently, about?
A: Yes, I--I very quickly formed the opinion that it was his intent to prevent or obstruct us, and particularly myself and Sergeant Ferguson, from dealing with the person on the pole.
Q: Yes.
A: I attempted to move him away and told him to move out of the way or he would be arrested for obstruction. I spoke very closely to him. It was very--it was still somewhat loud and spoke right directly into his left ear. He continued to resist. He took a very firm position on the ground. He planted his feet, he locked his arms together, and he had no intention, in my mind, of moving.
Mr. Malmo-Levine refused to move and protested that it was his right to remain where he was: he said to S/Sgt. Stewart: "No way, fuck you." Unquestionably, Mr. Malmo-Levine was physically obstructing the police as they attempted to carry out their responsibilities. They were therefore entitled to arrest him pursuant to section 129(a) of the Criminal Code. That section provides that a person commits an offence if he or she "resists or wilfully obstructs a public officer or police officer in the execution of his duty."
Given that the RCMP were acting in the execution of their duty when they approached Mr. Pond, the officers were entitled to arrest anyone who wilfully obstructed them. The law is clear that a person who obstructs a police officer from performing his or her duty to prevent a reasonably apprehended threat to the preservation of peace commits an offence under section 129(a): Abbey v. Dallin (21 January 1991) Nanaimo SC9613 (S.C.); aff'd (1992), 20 B.C.A.C. 228. I have no doubt that it is also an offence to prevent an officer from acting to protect life or property.
On the final day of the hearing, counsel for S/Sgt. Stewart and Sgt. McLaren, addressing this issue and the criticism levelled during the hearing against the police intervention, said: "[a]t some point ... there's got to be some common sense brought to bear here too. . .". I agreed with him then and I agree with him now. With the massive security assignment resting with the RCMP on campus the following day, not only does common sense indicate a clear obligation on the police to address what was unfolding before their eyes, but I go further and say that it would have been irresponsible for the police to do other than what they did. The complaint that Mr. Malmo-Levine's arrest was unlawful is unfounded.
18.3.2. Allegation of Excessive Force
The second element of the complaint is that excessive force was used in Mr. Malmo-Levine's arrest.
S/Sgt. Stewart tried to put an arm lock on Mr. Malmo-Levine but was unable to do so because Mr. Malmo-Levine had locked his hands together. At this point, Mr. Malmo-Levine called out to the crowd to lock their arms with one another and to move in and "hug."
S/Sgt. Stewart knew what was meant by a "hug." He described it as a technique used by protesters when police attempt to make an arrest. Protesters who wish to obstruct the police will close in and lock arms with each other to surround the police officers as they deal with the person being arrested. By simply standing still in that formation they can prevent the police officers from carrying out their duties. S/Sgt. Stewart said that, with Mr. Malmo-Levine continuing to vigorously push against him, he realized at that point that he was going to be mobbed and added:
People began to put their hands on me, people began--one fellow had his hand on my jacket as he moved in front of me to stop me from moving, and we were still trying to move Mr. Malmo-Levine away from the pole, so that Sergeant Ferguson could deal with the climber. Mr. Malmo-Levine was resisting vigorously, and at that time, I realized that I was going to be somewhat surrounded and was concerned.
18.3.3. Pepper Spray was Reasonable
S/Sgt. Stewart said two or three males tried to physically pull him away. S/Sgt. Stewart explained what happened then:
What I did, sir, was I drew my OC container, personal OC container, moved it down into the low ready position. Pushed David Malmo-Levine away from me and in an effort to stop his resistant behaviour, applied a short burst of OC spray; then turned to deal with the persons who had hold of me and fired approximately a one second burst of OC spray in their general area.
Q: Okay.
A: One of the person--all of the persons moved away, except one man with blonde hair, he moved away, came back at me a second time, moved forward again and grabbed my leg, my lower leg. I kicked out to kick him off my leg, he moved back and then began shouting at me. I gave him direct--verbal direction to back off, which he did. Malmo-Levine was taken away from the scene and other Members assisted in moving him away and we dealt with Mr.--the person we know as--as James Pond, who was climbing the pole.
Q: Was James Pond arrested?A: No. sir, and neither would Mr. Malmo-Levine, if he had not got in our way.
I accept all of the foregoing evidence of S/Sgt. Stewart. I believe his use of pepper spray on these two occasions was entirely reasonable given the dangerous situation in which he found himself. His version of the events is supported by other police officers, including Sgt. Ferguson and Cpl. Duffield, who said she had a concern about how she and her colleagues were going to be able to get the officers out of the crowd that was moving to the centre of the flagpole area where those officers were.
Speaking of the defensive actions taken by S/Sgt. Stewart, his counsel said:
It is submitted that his actions were entirely in keeping with the use of force model and the underlying concepts as well as the provisions of the Criminal Code which entitle him, as a peace officer, to use reasonable force (section 25) and to use force to defend himself (section 34).
I agree.
18.3.4. The Arrest
The evidence of Mr. Malmo-Levine confirms the picture of his actions painted by S/Sgt. Stewart and other officers. He said that when he saw the police approaching he deliberately got in their way by placing himself between the police and the flagpole:
When I learned that there was someone climbing the flagpole, at that point in time, I had come to the conclusion that running interference for that person would be a justifiable thing.
Q: Sure. And interference in this situation, I understand, meant to you that you would, to a certain extent, block anyone seeing the climber setting about his business?
A: Yes.
Q: And particularly the police?
A: Yes.
He acknowledged that S/Sgt. Stewart had tried to move him out of the way and that he resisted those efforts:
I made it as difficult as possible for them to remove me from the area without being aggressive towards them. I dug in my heels when they pulled. I leaned the other way. I got in their way obviously and--when they were going after the flagpole climber and--and I held my ground.
Mr. Malmo-Levine acknowledged that he called in the crowd to "come in and hug."
Isabela Varela had been at the teach-in at the Student Union Building and walked to the flagpole with Mr. Malmo-Levine. She confirmed Mr. Malmo-Levine's evidence and much of what the police officers said. She said the linkage of arms, in which she took part, was suggested by Mr. Malmo-Levine as, she believed, a gesture to protect Mr. Malmo-Levine and Mr. Pond from the police. She said the police broke through the circle they had formed and the officer dealing with Mr. Malmo-Levine (S/Sgt. Stewart) pushed Mr. Malmo-Levine's head very roughly against the flagpole and then pressed his hand against Mr. Malmo-Levine's throat.
Ms. Varela said that it was possible that the physical contact between Mr. Malmo-Levine and the police began with the police attempting to pull Mr. Malmo-Levine away from the base of the flagpole. She said: "it may be that first they were trying to pull him and then his head got pushed against the pole." I am satisfied that that is what did occur. The police did not deliberately bang his head against the pole nor attack his throat. As Mr. Malmo-Levine resisted police efforts to move him aside and then restrain him and take him into custody, there was no avoiding physical contact. What Ms. Varela saw, happened in that context.
The position of the B.C. Civil Liberties Association was that the alleged contact between Mr. Malmo-Levine's head and the flagpole was caused by unjustifiable police conduct. The Association also concluded that the police used a front chokehold in arresting Mr. Malmo-Levine and that this also constituted objectionable police conduct. I agree with counsel for S/Sgt. Stewart and Sgt. McLaren that the Association based its conclusion about a chokehold on Ms. Varela's evidence of S/Sgt. Stewart pressing his hand against Mr. Malmo-Levine's throat.
Counsel for S/Sgt. Stewart and Sgt. McLaren answered these allegations effectively, consistent with the evidence, and I agree with the following from his closing submission:
Counsel for The British Columbia Civil Liberties Association has, at paragraphs 122, 123 and 124, contended that an excess of force was used by the striking of Mr. Malmo-Levine's head against the flagpole. In my submission, the best and clearest evidence of that allegation is found in a careful examination of the video tape. I submit that it demonstrates clearly that there was no intentional action taken by S/Sgt. Stewart to cause "a cranial collision with hard objects" and that there was in fact no such collision. Certainly S/Sgt. Stewart pushed Mr. Malmo-Levine but it was in the course of dealing with the circumstances and it is unreasonable to suggest that there should be inferred some intention here to cause such a collision or injury.
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Mr. Malmo-Levine gave no evidence whatsoever concerning the use of a chokehold. Indeed, Mr. Malmo-Levine can be heard shouting throughout, which would indicate he was not being choked. S/Sgt. Stewart was not cross-examined on that proposition. His testimony made no mention at all of this. I suggest that the evidence in support of this argument is found in the testimony of Ms. Varela. In her testimony in chief, she stated that "an officer had pressed his hand against David's throat".
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It is submitted that any adjudication of this issue must necessarily focus upon a careful examination of the video tape. Specifically, the video tape excerpt of the incident . . . demonstrates conclusively that Mr. Malmo-Levine was not grabbed by the throat. There was no chokehold utilized or applied in this situation and the submission founded on the proposition that there was should be rejected completely.
The B.C. Civil Liberties Association also recorded its objections to what it described as the unwarranted use of pepper spray by S/Sgt. Stewart against Mr. Malmo-Levine. I have already expressed my views on that.
18.3.5. Police Conduct was Appropriate
As I have expressed my agreement with the response of counsel for S/Sgt. Stewart and Sgt. McLaren to the submission of the B.C. Civil Liberties Association on the two alleged instances of violence, it is only fair that I record the Association's final response to the position taken by counsel for the two officers:
At tab 2, page 5, paragraph 15, it is assumed that by our criticism of the striking of David Malmo-Levine's head against the flagpole, we were imputing to Hugh Stewart the deliberate intent of causing that collision. We think it unlikely, in fact, that there was any such intent. Recognizing the serious consequences that can occur from cranial impacts, however, we stand by our argument that care should be taken to avoid them.
At tab 2, pages 6 through 8, the evidence of Isabela Varela that David Malmo-Levine was grabbed by the throat is provided, but it is asserted that greater reliance should be placed upon the videotape of the incident, and that the videotape does not show David Malmo-Levine being grabbed by the throat. Relevant to that point, however, counsel for Hugh Stewart has pointed out at tab 3, paragraph 2, that ". . . as a general proposition, unless one can be satisfied that there is a continuous and comprehensive video or audio record, it is quite unwise and unhelpful to rely on such records to conclude an event did not occur."
I agree with the following submission of counsel for S/Sgt. Stewart and Sgt. McLaren with respect to the actions of the three officers who initially approached the flagpole:
In summary, I would submit that the police were properly entitled to make the inquiries as they did. The situation became a nasty confrontation at the point that Mr. Malmo-Levine elected to effect the obstruction that he did and persist as he did. The police action was responsive to Mr. Malmo-Levine; it was measured and appropriate. It was in compliance with the relevant sections of the Criminal Code and the accepted principles of force intervention.
That is to say, the police conduct reviewed in this chapter so far was, in my opinion, conduct appropriate to the circumstances.
18.3.6. Overcoming Resistance
Other aspects of this complaint relate to the degree of force used by the officers who assisted in taking Mr. Malmo-Levine into custody.
It was Sgt. (then Cpl.) Claude Wilcott who was first on the scene to assist S/Sgt. Stewart who was unsuccessfully attempting to put a wrist lock on Mr. Malmo-Levine. Sgt. Wilcott tried to grab his other hand as he was flailing and squirming about. Given Mr. Malmo-Levine's resistance, he realized he would not succeed so he put Mr. Malmo-Levine into a headlock. That did not last long. Cst. Michelle Adriaanse and Cst. Patrick Lockert soon arrived to assist and the headlock was released. Cst. Ricki Chaulk also came to help.
The officers moved Mr. Malmo-Levine off to an area east of the flagpole but it was no easy task. He was taken to the ground, but with him struggling every inch of the way, it was difficult to place handcuffs on him. Sgt. Wilcott spoke of trying to remove Mr. Malmo-Levine's right arm from underneath his torso. He explained:
I was having extreme difficulty in that, he was squirming and twisting and not--not responding to my directions at all. I was then concerned, you know, for what reason he had for hiding his--or maintaining his hand under his torso, at which time I--I briefly patted him down on his right side, feeling for any weapons that he might have, and around his belt area. And then we were eventually able to get the right arm secured behind his back. Even after he was handcuffed he continued to yell and scream and--and squirm and--and resist.
Sgt. Wilcott said that it is normal practice, when doing a pat search of a male subject, to include the groin area because that is a convenient place to hide weapons.
When he was finally on the ground, each officer took one limb, trying to control him. Cst. Adriaanse said Mr. Malmo-Levine was difficult to move because he was basically dead weight. He was an "aggressive, almost violent person," she said. She also acknowledged conducting a pat search for weapons while Mr. Malmo-Levine was on the ground. She said her right hand may have been in the area of Mr. Malmo-Levine's upper thigh or groin.
Cst. Lockert and Cst. Chaulk gave similar evidence of the struggle. Cst. Lockert said that after Mr. Malmo-Levine was handcuffed he continued to kick at the officers and yell and scream to the crowd. Cst. Lockert tied his legs together with a zip strap and he was soon carried away to an awaiting wagon.
Cst. Chaulk said that, with four police officers on him, it was their sheer weight that overcame Mr. Malmo-Levine's resistance. He said that the greater the number of police officers dealing with the arrest of a violent person, the quicker that person can be brought under control, with the least amount of harm to that person and to the police officers. I accept that that is so, and that is how Mr. Malmo-Levine was ultimately restrained.
Mr. Malmo-Levine said he was dragged 10 or 20 feet from the flagpole by the officers and was then forced to the ground. He said he was face down on the sidewalk and was completely immobilized and unable to move or struggle in any way. He said an officer applied his or her knee to his head and neck area and ground his face into the sidewalk and that one officer reached under him and held on to, without squeezing, his testicles. He acknowledged that he never voluntarily stopped struggling; rather, the police forcibly immobilized him.
18.3.7. No Excessive Force
Commission Counsel correctly defined the issue that I must answer with respect to the aspect of the complaint that addresses the arrest of Mr. Malmo-Levine:
The issue for the Commission to determine is whether the police used excessive force in carrying out the arrest and whether their actions were appropriate to the circumstances.
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The standard against which to assess whether excessive force was used in the circumstances is set by section 25 of the Criminal Code and the RCMP Incident Management/Intervention Model (Ex. 501, 507).
I agree also with the following submission of counsel for the 44 officers:
Sgt. Wilcott, Cst. Adriaanse, Cst. Chaulk and Cst. Lockert came to the assistance of S./Sgt. Stewart after Mr. Malmo-Levine had been placed under arrest for obstruction. They were entitled to assume that S./Sgt. Stewart had reasonable and probable grounds to make the arrest (R. v. Debot, supra; R. v. Dawson, supra; R. v. Venzi, supra). They were authorized by s. 25 of the Criminal Code to assist S./Sgt. Stewart in effecting the arrest, and to use the force necessary to do so.
In its final submission, the B.C. Civil Liberties Association expressed the following view:
Two aspects of the arrest that engendered some comment but to which we specifically do not object were the use of a "come along" wrist lock, on the one hand, and the combined effort of numerous police officers to hold Mr. Malmo-Levine down. Both of these aspects of the arrest were, in our submission, calculated to minimize the amount of force necessary to effect the arrest and to therefore reduce the likelihood of harm that might otherwise have occurred. In particular, we heard no evidence that would indicate any fault on the part of those four officers that were involved in removing Mr. Malmo-Levine from the flagpole site and putting him into custody.
Mr. Malmo-Levine certainly attaches fault to those four officers. My conclusion, however, is that any discomfort experienced by him was due to the battle he put up to avoid detention. In subduing him and bringing him under control, the police officers went no further than was made necessary by his own actions. If an officer took hold of his testicles, it was momentary and in the course of one of the pat searches. Mr. Malmo-Levine acknowledged that although he called out to the crowd "they're squeezing my balls," that never happened. He said he was alerting the crowd to the worst case scenario and attempting to discourage the police from being anywhere near that part of his body. He said he feared what they were going to do next. In my opinion, his own actions were the cause of his predicament-not those of the police officers. He was resistant and uncooperative to the last and I am satisfied the police officers used only the force that was necessary to successfully subdue him. The participation of the four of them minimized the likelihood of physical harm to Mr. Malmo-Levine or to the officers. In the result, no injury occurred to anyone. The conduct of the police officers was appropriate to the circumstances.