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RCMP Act - Part VII Subsection 45.45(14)
COMMISSION INTERIM REPORT
23. COMPLAINT CATEGORY 11: CONFRONTATION AT THE NOON RALLY
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There were complaints that the RCMP used excessive force, including pepper spray, on the crowd after a security fence came down, that they used it punitively and without warning, and that some who were seeking to be arrested peacefully were pepper sprayed and assaulted by police. |
23.1. The Protesters' Plan
Earlier in this report I referred to the march by 2,500 to 3,000 people to the security fence near the flagpole and to what they intended when they got there. They expected to meet a line of police officers protecting the integrity of the fence. As an act of civil disobedience, they intended to lean against or bump into the officers at the front of that line. This, they hoped and expected, would result in many of them being arrested. The leading organizer of the march, Jonathan Oppenheim, explained:
A: . . . it was a civil disobedience action and that people were going to go--I would use confront APEC, people were going to go and basically lightly bump against police.
Q: I'm gonna suggest, sir, that that's a confrontation intended to bring about their arrest?
A: I wouldn't consider it a confrontation. I would consider it a civil disobedience action which we anticipated would probably result in arrest.
Garth Mullins, who performed duties during and immediately following the march as a "peacekeeper," gave his explanation:
And you're showing through a symbolic action, through your arrest, through your willingness to give up your personal--your personal time to be incarcerated. That you're willing to go to show what you're trying to do. This--this is the essence of civil disobedience. This is the symbolic value of offering yourself forward for arrest and incarceration of your profound conviction that the law and the policy is wrong. This is a time-honoured practice that's been around for hundreds of years, and social rights have been won through the use of this in our own country and many others.
Mr. Oppenheim explained that a peacekeeper was there to be "very neutral." Mr. Mullins, who volunteered his services as a peacekeeper, said in that role he was like a marshal, fulfilling a crowd control function and working with other peacekeepers as a team to help the demonstration achieve its goals. He explained:
If a demonstration wants to go from one point in the city to another, peacekeepers help make sure that the people in the demonstration go there, you know, take the correct streets. If a demonstration has a certain amount of goals, such as the demonstration is non-violent, and it appears that one person is being extremely aggressive, then the peacekeeper's job will be to calm that person down and to suggest to them that their actions are outside of the mandate of the demonstration.
23.2. Confusion at the Fence
Mr. Oppenheim acknowledged that, when the police unexpectedly abandoned the security line in front of the fence, the protesters did not know what to do: they were confused and surprised. One protester, Elise Thorburn, said protesters were shocked to find themselves so close to the fence. Ms. Bonfonti said the movement of the police away from the fence caused confusion for the marchers. She said she was in a "kind of shock for a moment just because I did not know why they would turn and leave." She was asked what happened next:
A: Then we stood there for a minute because we were, like the people that I was linked arms with, we were kind of, sort of looking at each other like, well, what are we gonna do now because the whole idea was that there was gonna be a line of Police and we'd lean into them but now they're not there. So, just kind of, I mean there wasn't a large meeting or anything but by talking to the people on either side we said, well, we're standing in front of the fence, so let's--I bet if we start to climb on the fence that they'll come back and arrest us then.
Q: Okay.
A: So, that's what we did.
Q: So that was decided upon and--and you in fact did exactly that; is that correct?
A: Yes. I myself didn't get very much onto the fence, I reached up with two hands but then it--that's when it fell.
23.3. The Fence Comes Down
Before Ms. Bonfonti reached the fence others had climbed onto its cement base. Cst. Kevin Bracewell was a Quick Response Team leader whose team was stationed to the left of the fence. Twice he directed his team to "move in" and ask those on the cement bases to get down. He said the first group were mostly media persons with cameras and lenses and the second group were what he described as "members of the crowd". Both times the climbers complied with the police request. Cst. Bracewell was asked what happened next:
A: Again, more individuals climbed onto the fence line. At this point, I again, gave direction from my team to deploy and as we were deploying, the fence was then pulled down on top of my team and myself.
Q: All right. So you were actually standing under the arc of the fence as it came down?
A: Yes.
Q: All right. What happened then?
A: We responded by using the OC spray as the fence was coming down, and members were trapped underneath, and members of the press were also under there, to clear back the people that were pulling the fence down and to stabilize the fence line again.
Q: All right. And can you tell us a little more detail about that? You made a decision, obviously, to use OC spray. Why, and against whom?
A: It was directed against the people that were identified as physically clinging onto the fence which was being pulled down on top of my team and members. That was people actually pulling and jerking onto the fence. The spray was deployed. The fence was released, and then we moved forward to--to then disperse the crowd just further back from the collapsed fence. Once we'd extricated ourselves from the fence, myself and my team didn't then use any more of the OC spray. Once we'd extricated ourselves from the fence, and the fence where it had sort of sprung back off myself and my team, we then moved forward extending our line, and verbally and physically pushing people back away from the fence line to a line approximately 15 metres from the fence line where we stopped, and then were reinforced by the bike squad units, which had been holding in reserve on the flanks.
Q: During the course of those actions, was any violence directed from the crowd to you, or to any of your members?
A: I can only specifically speak for myself, violence was directed towards me.
Q: And can you describe that?
A: Somebody from the crowd threw what I would suppose to be one of the placard pieces of wood, it was a length of wood, and it was thrown at me, and it struck me on my left wrist.
23.4. Police Response
All of the Quick Response Teams that had been lined up to the left and right of the open fence and at right angles to it moved back in front of the fence to assist as described by Cst. Bracewell. A solid police line was then formed with the VPD Bike Unit members, all with their bikes, in the first line and the RCMP members of the Quick Response Teams behind them, all facing the protesters.
Ms. Bonfonti, who said she had no intention of either pulling down or going over the fence, was among those trapped under it. She said she was hunched down on the ground, with her face covered to avoid being pepper sprayed, when she was grabbed from behind her back by a police officer, carried and dragged away, and then placed under arrest along with two other protesters.
Several officers explained the tension and near crisis of the moment when the fence collapsed. Mr. Mullins perhaps best described the scene as one of chaos, with the protesters' plans being quickly abandoned, and the protesters "just trying to preserve themselves."
Sgt. McLaren, second in command of the Quick Response Teams, was caught under the fence when it came down. He was concerned that he would be trampled in all the confusion. He had a physical confrontation with one protester who would not release his hands from the fence. RCMP officers Cst. Sean Powell and Cpl. Dale Carr deployed pepper spray on this occasion. They each gave their reasons for doing so. Cst. Powell was asked whether he had been instructed or ordered to use the pepper spray:
No, not on that particular occasion. The--the use of pepper spray is trained to us in the RCMP Training Academy and we are each taught to use our judgment when we think it is proper and just to use the pepper spray, and at that time I believed that that secures--that breach of the fence where the fence had been ripped down was serious enough and there was enough people coming over the top of that fence at that point jeopardizing the safety of the other officers in the area that at that time I decided it was in the interest to use my pepper spray.
Cpl. Carr was asked why he felt it was necessary to use pepper spray:
I was afraid for my--my safety, my life, in fact, It was--probably one of the scariest times of my career. And to start pushing people back--this is, in my opinion, and the way we were trained, it's a non--it's a less violent way to have people move back, or to--to control people. I'd rather use the pepper spray than start wrestling with people, wrestling with a large crowd like that or using well, a higher means of force.
I agree with the summation of these events set forth in the closing written submission of Counsel for S/Sgt. Stewart and Sgt. McLaren:
In fact, as matters unfolded, the situation turned out very badly. The protestors approached, drumming and chanting "the students are here to keep the peace; watch the actions of police!" They approached the fence and some of their number climbed onto the fence, despite the direction by QRT members to stay off. The situation was complicated because a significant number of media and particularly television personnel were in or near the front ranks of the protestors. Because the fence turned out to be inadequately fastened to its uprights, it collapsed. In the result, individuals, both police and civilian, were trapped under the fence. Pandemonium and confusion reigned. In the circumstances, it was imperative that the police move the crowd back immediately from the fence line. . . . The police response was to close in to the gap from either side and to move the protestors back in order to be able to restore the fence to its upright position. This was accomplished by means of loud verbal direction, pushing and the intermittent use of OC spray.
Counsel for the B.C. Civil Liberties Association said, in closing written submissions:
Faced with a crowd which greatly outnumbered them, with no barrier but their own bodies between the crowd and the Museum of Anthropology, the police at the fence had to react very quickly and under extremely stressful conditions. We would not criticize their initial use of pepper spray under those circumstances.
Complainants' counsel adopted the argument of counsel for the Association on this point. I agree with both counsel. The police officers faced a serious and difficult situation. The 18 world leaders were engaged in their conference at the Museum of Anthropology, behind the fence line. The RCMP held responsibility for their safety. The intentions of the protesters, once they had pulled down the fence, were unknown. It is reasonable to conclude that at least some of them were, at that point, intent on making their way to the museum site. Counsel for S/Sgt. Stewart and Sgt. McLaren said, during closing argument:
But the real issue is what was the intention as known by the police at the germane moment, the germane moment being approximately 12:00 noon. And in my submission, it certainly hadn't been stated or indicated to them in any explicit way and, so, it left them in the position of having to draw reasonable inferences from what they saw.
I agree with that proposition. In my judgment, the conduct of all members of the RCMP engaged in the events just reviewed was appropriate to the circumstances.
23.5. Protesters Advance Again
Tension was extreme immediately after the events I have described. Nobody knew what was going to happen. There was concern and anxiety on the part of both police and protesters. It was noisy and demonstrators were angry. Organizers and peacekeepers played a significant role in calming the demonstrators. They were successful in having the majority sit on the ground, leaving an open area of approximately 20 feet between protesters and the police line. Megaphones were used to address the crowd.
Within 10 or 15 minutes a decision was made to approach the police line. Mr. Mullins said the decision was for small groups of protesters to go forward "trying to re-establish the initial plan." That meant leaning or bumping into the police line and then being arrested. Ms. Thorburn said the decision was arrived at through what she described as a "democratic conversation." She said that people got up and gave suggestions that were discussed and then it was decided that "we would go forward in groups of four to be peacefully arrested." Those groups were formed and Ms. Thorburn was in the first group to advance. They did not first try to communicate directly with the police officers. Mr. Oppenheim was asked whether he had inquired of the police as to who was in charge and whether he could talk to that person:
No, 'cause we felt that they understood what we were trying to do. It didn't appear there was any doubt and there was certainly no doubt in my mind, and I don't think any doubt in anyone's mind, that the Police understood exactly what we were trying to do and how we were trying to do it.
Mr. Oppenheim said the police knew of these plans because they had attended public meetings and forums where the protesters' plans were openly discussed and because they were well able to hear the plans being formulated at the site as the protesters sat on the ground and discussed their next move. Mr. Oppenheim explained what occurred once the decision was made to "try the C.D. again in the same way:"
A: I remember asking, with the megaphone, saying that we can try the civil disobedience action again, but everyone has to be really, really quiet when we do it. And people should move very, very slowly when they do it.
Q: Okay. At this point, you're using the megaphone?
A: Yes, and the Police are all around me, so I'm sure that--I mean I'm--you know, my understanding is they can hear me, so it's basically--I mean, I was basically megaphoning this information to the crowd, and to the Police at the same time.
Q: All right. So tell us again, carry on with what you were saying in the megaphone at that time.
A: And I said--the situation is very volatile--I remember saying the situation is very volatile, so please move very, very carefully, and very calmly, and then just described it, you know, described what we would do, and then--
Q: What did you describe?
A: I just said that a group of five people are going to approach the line very slowly and just lightly push against the Police.
Q: And you said that into the megaphone?
A: I believe--yeah.
Q: To the crowd?
A: To the crowd and the Police, because they were all kind of around us.
In my judgment, sending the four protesters forward in the existing environment without direct discussion with the police officers was extremely irresponsible, for which Mr. Oppenheim, in his leadership role, must bear major responsibility. The events of the previous minutes had significantly changed the circumstances that had been discussed at public meetings and forums. The volatile situation described by Mr. Oppenheim made it impossible for the police to know and understand what to expect. His communication via the megaphone was ineffectual and was no substitute for a face to face discussion. The result was another disaster.
Ms. Thorburn who, as I have indicated, was one of the four to go forward at this time, discussed what occurred:
Q: Which group were you in?
A: The first group.
Q: How did you come about being part of that group?
A: Because I was just way too gung ho. (sic) I don't know, I just ran up there. I was right in the front when we were sitting, I was right in the front row, and I don't know, I was just really excited or something--really silly, and I just linked arms with somebody.
Q: Did you know the people that you were linking arms with?
A: No.
Q: What did you understand you were going to do before you did it?
A: Proceed forward to be peacefully arrested.
Q: And were you to say anything to the Police?
A: No.
Q: Okay. So describe now for us the line that was formed and how you approached the Police and what you did?
A: Well, first of all, when we began the protest, we were all given little pamphlets about civil disobedience and how to behave, and we were told about non-violence and no drugs or weapons or anything like that. So when we went forward we walked very slowly, and we just moved quietly and slowly towards the Police line, four people linking arms, and then...
Q: Did you say anything to the Police when you approached them?
A: No.
Q: All right. What did you do physically as you approached?
A: Just stood my ground, basically. I was linked arms with somebody else, I was pushed backwards and like, punched in the face a couple of times in the forehead by the--one of the Police Officers, and because I was linked arms with somebody else, I sort of went backwards and sprung forwards again, and...
Q: Were any of your companions with whom you were linked in arms saying anything to the Police?
A: Not that I remember, but they could have been, I don't remember.
Q: Okay. So just describe what happened to you?
A: We approached the Police line and there was a lot of shoving at us with the bicycles, and a lot of screaming, and I guess the chaotic atmosphere was really-it was, like, played upon by the RCMP and--or the Police Officers, and they started screaming all at once, and all these different people yelling about--that to back off, and they were going to spray, and this and that. And, I don't know, it was difficult to understand, and then all of a sudden I realized that they were probably going to spray something, so I raised my right arm above my face--and sorry, and I was pushed in the shoulder backwards, and then I was like, punched in the forehead, so that my face was exposed, and my arm was pulled down. And then I was sprayed all over my face, and then my side and back were sprayed. And as I leaned forward, like, kind of huddled over, my backpack was grabbed from behind and I was just pulled over the row of bikes.
Ms. Thorburn was then arrested. In cross examination she said that although she was shoved quite aggressively, she was not punched.
Cst. John Snow described the same scene from the perspective of a police officer who had participated in the clash:
Q: All right, and what happened then?
A: From there--I don't recall exactly if the individual's act--once we formed the line, whether they backed off and regrouped. I know there was some regrouping going on. But I know that, you know, we were still dealing with the protestors and trying to keep them off the line. I don't know exactly when during the course of that, but I remember, you know, protestors and media all coming and protestors coming and actually pushing up against us again. Grabbing onto us. There was an incident where there was a water bottle at one time through the line that was from the crowd that was--that was thrown towards us. Either a stick or another light object that was thrown over our heads. And there was another incident as well, where--and I believe it to be a female, but I can't say for sure, either had an aerosol or some sort of container which she actually sprayed a substance, whether it be water or a foreign agent, I don't know, in our direction as well. The protestors continued to come towards us and --and--and banging up against us. At one time, one of the protestors in--in the--in a group, had his hands or hand or hands over his--his face in a--in a fist like gesture, and would kinda actually take runs of--with our line and--and people behind him and actually run at the line. Trying to--to breach the line and actually making contact with myself and obviously the--the female member that was closer to, you know, to the crowd. And actually I had to push him back numerous times. I'd been hit by him on a couple of occasions and I believe at one time was actually hit in the face with his hand. From there I--he--after the couple of times coming towards me, I believe I did spray him with pepper spray, gave him a one or two burst spray. That didn't deter him, he continued, to come at me, where I--I recall grabbing onto his hands and actually pulling him over the--the bike line. And at that time as I was pulling this individual on, there was a--other people behind him, there was actually a female that was either hooked onto him or grabbing onto his belt, I'm not sure how. But she came right over the line as well, with him. And when--when something like that arrest happens, the individual is dealt with behind and we basically form back up and--and try to, you know, maintain the line.
Q: All right, so once you'd pulled him and the--and the girl through the line, they were taken care of behind--
A: They were-
Q: --you?
A: --they were dealt with, with an arrest team behind, yes.
The female mentioned by Cst. Snow was Ms. Thorburn. The male was Aiyannis Ormond, who was neither a complainant nor a witness at the hearing. Cst. Snow said that he concluded that the pepper spray was not a deterrent to Mr. Ormond so on "[h]is last run at me, I decided to use the force of his weight and the people who were pushing him to actually drag him over the line."
There is no question but that the police dealt aggressively with the four people with whom they were engaged in this face-to-face confrontation. That aggressiveness began when the four arrived at the police line. The police did not know what was going to happen. Recent events were clearly in their minds. They were vocal in directing the protesters to back off. Everyone knew by then of the tenuous nature of the fence, even though it had undergone some quick and temporary repairs. I do not fault the police for the aggressive stance they took under the circumstances. Unquestionably, the amount of pepper spray released was considerable. There were many protestors behind the first group of four with arms linked ready to come forward to the police line. It was tense and it was scary. I agree with Commission Counsel that, in the spectrum of force options, the police "followed through with verbal commands, soft hand techniques, pushing, then they used OC (pepper spray) and, when that didn't work they arrested." As unfortunate as the results were, particularly for the four who went forward to the police line at that stage, in my judgment the police conduct was appropriate to the circumstances.
One of those four was a male who suffered severe respiratory distress as a result of the pepper spray. He was one of the two people in the line who were not arrested. He was neither a complainant nor a witness at the hearing. Fellow demonstrators, police and qualified paramedics attended to his needs. Police offered all possible assistance, particularly through the efforts of Cst. Fulks who had special first aid training and experience in this field. Decontamination procedures were begun and were continued after the person had been removed from the crowded area. By the time ambulance personnel arrived, his condition had greatly improved. He was nevertheless taken to
hospital for examination as a precautionary step. I am satisfied that the police acted properly in dealing with this individual. I am also satisfied that proper and acceptable decontamination procedures were followed by the police on site as they attempted to bring relief to Ms. Thorburn and Mr. Ormond, both of whom had received considerable pepper spray.
23.6. Negotiated Arrests
Not long after the Thorburn/Ormond incident, Mr. Oppenheim spoke with Sgt. Rob Rothwell of the VPD. Sgt. Rothwell was in the front line of the VPD Bike Unit and had been in the centre of the event that had just concluded. Mr. Oppenheim said Sgt. Rothwell told him that the police did not understand what the demonstrators were trying to do. Sgt. Rothwell asked Mr. Oppenheim if he would get a delegation together so the two sides could talk and try to break the impasse. Mr. Oppenheim acknowledged that he responded by saying that the protesters were organized and Sgt. Rothwell should organize his own delegation. Mr. Oppenheim then left. For Mr. Oppenheim to have rebuffed what I believe to have been a sincere conciliatory initiative by the police at this time of near crisis was another act of irresponsibility on his part. He said he left because he was upset. Fortunately, the matter did not end there. Rodney DeCrew, a peacekeeper like Mr. Mullins, became involved in the discussions. The ultimate result was an agreement to allow for a series of negotiated arrests.
The negotiated arrests involved a procedure whereby groups of four or five protesters would approach the police line and, without any altercation, pass through the line and be taken into custody. Sgt. Kenneth Frail of the VPD and a member of the bicycle squad attached to the Quick Response Teams played an active role in this arrangement. He explained the basis for the agreement:
. . . the reason for the arrest was because I anticipated a breach of the peace would reoccur amongst the same 30 or 40 people that I was convinced that this was the same parties that had pushed against us, that would likely tear the fence down. So this wasn't a voluntary arrest, if you like, on my part. This was a breach of the peace arrest where a charge wouldn't be laid, where we could hold a person until such time as we could release them.
Sgt. Frail acknowledged that he saw this as a way to defuse an undesirable and very tense situation. He continued:
The arrests were to prevent a re-occurrence at that point. We were also very mindful that, if the crowd got through the fence, that we would have to escalate to other levels of use of force. We had 300 crowd control members on the other side of the fence, you know I can't even begin to imagine what kind of altercation we would have been faced with, if semi-peaceful protestors, if you like, were led through the fence by more aggressive people, and were confronted with a Crowd Control Unit. The levels of force would have escalated and I felt, we had a duty, as Peace Officers, to prevent that from occurring. And that's why those arrests occurred.
Under the circumstances, and with a limit on the number of arrests that could be accommodated, it is my belief that the negotiated arrest procedure was a very sensible course to follow. The arrest component of the civil disobedience then in progress was, for reasons already explained, very important to the protesters. S/Sgt. Stewart, who was directing the actions of the Quick Response Teams, decided that after four rows of four protesters each had gone through the negotiated arrest process, it should stop. All had gone as expected, although one of those arrested said she was jostled by the officers in the process. That was not a significant occurrence. S/Sgt. Stewart gave his reasons for bringing the process to a halt:
We were--we--we agreed to--to carry out the arrests, but it became obvious to me by the number of persons that were volunteering to be arrested that we were simply weighing down the police and going to make it almost impossible to deal with--with anything else that occurred. I then determined that, as these were essentially supposed to be symbolic arrests to state a point, and as a means of protest, that, in discussion with John Oppenheim, that we had reached that goal in my mind, and that I was not prepared to accept anymore individuals to be voluntarily arrested. That caused a great deal of--of--it was obvious to me that there was a great deal of consternation caused by those remarks.
Mr. Oppenheim went to talk to Sgt. Rothwell about the decision that had been made and communicated his position:
I was basically arguing with him for quite some time that--you know, why are you doing this, there's no reason why you can't arrest people. It's the best--you know--all these people are going to be participating in civil disobedience and the safest course of action is just to arrest them peacefully and do it in this manner, because, you know, you don't want to bring up the tension, why don't you just keep doing this.
In my view, Mr. Oppenheim completely overlooked the fact that the police force's principal task on campus that day was to protect the safety of the visiting world leaders. To have met the wishes of Mr. Oppenheim and his associates would have created obvious risks to the safety of those visitors by disrupting the police resources available for security duties. Given the number of protesters standing ready to be arrested, the demands on personnel and physical resources such as vehicles and jail cells would have been enormous at a time when the police needed to commit their full attention to their security assignment. In my judgment, the police acted very reasonably in accommodating the wishes of the demonstrators for a negotiated arrest process and they acted equally reasonably in calling it to a halt.
23.7. More Civil Disobedience
Mr. Mullins said that he and his associates had to figure out the next step in the process. He said approximately 120 people were lined up in 10 rows of 10 or 12 each, facing the police line, all of whom wanted to be arrested. Mr. Oppenheim said that, after discussions, the decision was to "try the civil disobedience action again." Accordingly, the line of demonstrators immediately in front of the police line began bumping into the officers, "rocking a bit back and forth against the police line and just pushing slightly, but not very hard", according to Mr. Oppenheim.
S/Sgt. Stewart described this as "a very uncomfortable experience." I am sure that it was exactly that from the perspective of the police officers, particularly those in the front line. S/Sgt. Stewart explained the situation as it then existed:
What happened from there was a bit of a face-to-face standoff, with the police on one side, the group of determined protestors, in this block of people and then hundreds and hundreds of other persons sitting, singing, chanting, from behind what appeared to be an internal security line within the crowd, back down the mall.
S/Sgt. Stewart said he believed that it was only a matter of time until an attempt would be made to push through the police line. Considering what had occurred and what his resources were then facing, he concluded, quite reasonably I believe, that the crowd was then dangerous and that the police were at risk. Had the matter escalated and the tactical troops from Vancouver and Ottawa been brought out, I am satisfied that the police would have been able to keep control but it would not have been a pleasant experience. The standoff continued for more than an hour with rows of protesters standing before the police. Those in front were inches from the police line. The police believed that if the protesters moved forward together they would knock through the police line. S/Sgt. Stewart said:
. . . . This struck me as a group of people - a human block of 15,000 plus pounds that was going to push through the police line to the fence. And I was very, very nervous. The members were very, very nervous. There was a lot of conversation going on. To my understanding at that point in time, the Crowd Control - or the Tactical Troup had been advised to stand by in Level 2.
However, rather than that mass of people moving forward, they ultimately decided to leave for Gate 3, the planned exit route for the leaders. Mr. Oppenheim said they chose that location because they anticipated that if protesters sat on the road, they would be arrested.
In summary, I conclude that the police conduct reviewed in this chapter and which was the subject of complaints was appropriate to the circumstances.
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