CHAIR'S FINAL REPORT AFTER COMMISSIONER'S NOTICE
Complaint of Mr. Svend Robinson (Summit of the Americas)

RCMP Act
Subsection 45.46(3)

CHAIR'S FINAL REPORT AFTER COMMISSIONER'S NOTICE

In response to Mr. Svend Robinson's request received by the Commission on March 8, 2002, I have completed my review of the RCMP disposition of his complaint.

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

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

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

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

In the present case an Interim Report after Review, dated October 29, 2003, was sent to the Commissioner and the Minister of Public Safety and Emergency Preparedness.

In a letter dated February 3, 2004, the Commissioner provided his notice on the findings and recommendations made in the Interim Report.

The Commissioner rejected my recommendation that the RCMP apologize to Mr. Robinson as a representative of that group of protestors gathered at the Summit of the Americas that was, in Mr. Robinson's words, "fired upon" by the RCMP. The Commissioner did not support my conclusion that the RCMP's use of tear gas against Mr. Robinson and others represented excessive force in the circumstances reviewed. I restate my position that the force used was excessive, and that an apology to Mr. Robinson, as an individual and as a representative of those protestors adversely affected by RCMP conduct herein considered, is warranted, appropriate and overdue. The Commissioner and I agreed that there was insufficient evidence to conclude that Mr. Robinson was struck by a rubber bullet fired by the RCMP.

I note, however, that the Commissioner largely supported my findings and recommendations, some of which he placed in context. I thank him for his professional consideration of these matters.

The Commissioner fully accepted my finding that the sheer number of protestors confined in such a small area coupled with existing breaches of the perimeter fence did constitute a threat to the Internationally Protected Persons (IPPs) gathered such that RCMP intervention was necessary to clear the area. The Commissioner found comments pertaining to the leadership and instruction of the troopers "unnecessarily harsh." He argued that although the exact wording of the warning that the RCMP gave the protestors, Mr. Robinson included, to leave the area was not that required by existing policy, the wording actually used was sufficient and appropriate to the overall circumstances encountered by the troop. The Commissioner agreed that the amount of time allowed for dispersal was insufficient, on a "purely technical" basis. He speculated, however, taking a "pragmatic approach," that even if "sufficient" time had been allowed, the crowd was disinclined to disperse.

I reiterate that existing RCMP policy, if not simply common sense, required that the protestors be advised, in both official languages, that they were unlawfully assembled and were required to clear the area. They were to be advised of the legal consequences should they fail to move, i.e. arrest and subsequent criminal prosecution, and allowed sufficient time, given the instant circumstances, to disperse. Following this "legal" warning and the passage of an appropriate amount of time, RCMP policy demanded that the protestors were to be advised that if they remained, the RCMP was lawfully authorized to use force to remove them, and would do so. The exact nature of the force to be used, and the manner in which the level of force to be used would escalate, if necessary, was to be clearly specified in both official languages. Following this "use of force" warning, the RCMP was required to allow sufficient time, given the instant circumstances, for the crowd to disperse before using any physical force against them. Thus, RCMP policy did call for consideration of the exigent circumstances; if properly implemented by troop leaders, it would have been much more likely that the crowd could have dispersed without incident, achieving the RCMP objective to clear the area. The question of whether the crowd would have dispersed had sufficient time been allowed and a proper warning given was rendered moot by the RCMP's conduct and failure to follow its own policy.

I note that the RCMP has incorporated some of my recommendations on these matters into policy since these events occurred, and that there is considerable agreement in spirit on others. For example, all members, immediately before assignment to an event such as the Summit of the Americas, must undergo instruction in existing tactical operations policy, and must demonstrate knowledge of it annually. In addition, current instruction on warnings given at the Tactical Troop Commander's pilot course shall be reviewed and modified to reinforce the importance of allowing a crowd sufficient time to disperse. Should revisions be deemed necessary, those commanders who have already completed training shall be instructed accordingly at an upcoming Tactical Troop Commander's Workshop. Further, the Commissioner and I agree that RCMP policy does not provide direction on the provision of medical assistance by the RCMP to demonstrators who have not been arrested. The policy simply states that medical assistance may be provided, circumstances permitting, subject to availability of resources, operational requirements and priorities, and the establishment and maintenance of a safe working environment. This issue should be addressed in anticipation of future, similar conferences.

The Commissioner did not accept my recommendation that RCMP policy be clarified concerning the issuing of warnings, such that, in appropriate circumstances, the commander would be required to specify an actual time after which force would be used, allowing sufficient time for compliance. For example, "We will commence the use of force in ten minutes, or at 15:00, if you do not disperse. This is your last warning." The Commissioner felt that this recommendation contravened the Incident Management/Intervention Model, as it would negate a commander's duty to continually assess the situation and determine the corresponding appropriateness, type and level of force to be used, if any. With respect, I cannot see how this is so. I did not suggest that this warning be given in all situations, but rather, that it be considered in appropriate circumstances. Here, there were no exigent circumstances demanding that the crowd be moved at that given minute, rather than ten minutes later. Had a reasonable time for the use of force been specified, i.e. ten minutes from the last warning, it is entirely possible that many would have simply voiced their protest one last time, gathered their belongings, and left the area before force was used, leaving behind only those who truly desired a physical confrontation with the RCMP.

The Commissioner noted that the RCMP did not thoroughly investigate two incidents that were described in the Interim Report, one involving the use of tasers and the other blast dispersion gas or rubber bullets. These formed the basis for the fourth allegation made that members used their power and authority unnecessarily and without justification. I note that these incidents were captured on the videotape that the RCMP forwarded to the Commission for the purpose of my review of Mr. Robinson's complaint. The Commissioner has advised that the Commanding Officer of "O" Division will thoroughly investigate only the second incident and take whatever action he deems necessary, and report his findings and action taken to the Director, Professional Standards and External Review, so that the Commission may be kept informed. The Commissioner agreed that remarks made by members concerning the linguistic abilities of the protestors, together with attendant laughter by these same members, were inappropriate and discourteous, contrary to section 37(g) of the RCMP Act.

I have reviewed the videotape of both incidents. In the first, one young man is surrounded by three uniformed troop members. He is prone on the ground, and appears to be passively waiting for the members present to arrest him and drag him away, which would have been consistent with applicable RCMP policy. Instead, a fourth member appears, and tasers him briefly. He is helped to his feet and led away. In the second, four young men pause approximately 40 feet away from approximately 40 riot-geared troop members maintaining a static position at a street corner. Three members of the troop fire at them with minimal warning given, if any. One young man is clearly struck with a projectile of some sort, and is subsequently mocked by troops, even as he asks, first in French and then in English, to speak with the officer in charge. I find these episodes to be equally egregious. I feel obligated to recommend, again, that both incidents be fully investigated by the RCMP. I see no plausible reason, given the nature of this complaint and the fact that both were captured on RCMP videotape, that this has not yet been done.

The Commissioner concluded that however inappropriate the conduct addressed in Mr. Robinson's complaint might have been, it should not overshadow that of the entire police action at the Summit of the Americas, which, overall, he found commendable.

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

___________________________
Shirley Heafey
Chair

February 18, 2004

Commission for Public Complaints Against the RCMP
P.O. Box 3423, Station "D"
Ottawa, Ontario
K1P 6L4