VERSION VETTED FOR POSTING

COMMISSION FOR PUBLIC COMPLAINTS AGAINST THE RCMP

VICE-CHAIR'S FINAL REPORT

RCMP Act
Subsection 45.42(2)

VICE-CHAIR'S FINAL REPORT

OVERVIEW

On January 5, 2003, the complainant was shovelling snow off of his driveway and onto the street. Two City of Moncton snow removal workers told him to stop, as he was violating a city by-law. The conversation between the snow removal workers and the complainant became heated, and the snow removal workers called the RCMP to report that the complainant had threatened to hit them in the side of the head with a shovel if they left their vehicle, and had refused to stop shovelling snow onto the street. Two members of the Codiac Regional RCMP in New Brunswick attended the complainant's residence. Following some interaction between the members and the complainant, they arrested him for obstruction and for uttering threats. During the arrest, one member pepper sprayed the complainant. The complainant later pled guilty to uttering threats and was found guilty of obstructing the members.

On January 5, 2003, the complainant complained about the conduct of one of the members. He essentially alleges that the subject member used excessive force, used profane language, and refused to identify himself.

Following its investigation, the RCMP provided the complainant with a letter of disposition dated October 21, 2003 that did not support his allegations.

The Commission received the complainant's request for review on November 17, 2003.

For the reasons outlined below, the evidence leads me to conclude that the subject member acted appropriately in his dealings with the complainant.

COMMISSION'S REVIEW OF THE 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. When reviewing a complaint, the Commission does not act as an advocate either for the complainant or for RCMP members. Rather, its role is to inquire into complaints independently and to reach conclusions after an objective examination of the information provided.

Having now reviewed the complainant's complaint and the RCMP's letter of disposition, I have prepared this report, which contains my findings with respect to the complaint. A detailed and very careful examination has been undertaken of all the relevant materials related to this file. This has included a review of the statements of the complainant, the members, the complainant's stepdaughter, the complainant's friend, and a snow removal worker.

FIRST ALLEGATION:  The subject member used excessive force.

The complainant stated that one of the members approached him and asked him his name, but that he would not provide it as he felt he did not need to. The complainant explained that that member then took hold of his jacket and told him that he would have to go with him as he was being charged for throwing snow on the street and uttering threats to the snow removal truck driver. According to the complainant, the subject member then approached him quickly, grabbed his right hand and pulled it backward. The complainant stated that he told that member that he was diabetic and could not breathe, but that the member replied, "Too bad, I call the fuckin' shot here."

The complainant stated that he and the officers walked across the street, with one member holding his jacket and the subject member holding his right arm. The complainant explained that the subject member said that he was going to handcuff him, and then pulled out his pepper spray and sprayed the complainant in the eyes and on the nose. The complainant complained that the subject member had used pepper spray, punched him in the ribs and pulled his arm back.

According to the other member, he asked the complainant twice for his name and told him to remove the snow from the road. The member stated that the complainant was visibly angry and said that he would not give him his name or remove the snow. The member stated that the subject member arrived at that point. The member related that he explained to the complainant that he would ask him one final time to give him his name and remove the snow. The complainant refused. According to the member, he told the complainant that he had threatened city employees and was now obstructing him, and the complainant gave him no other choice but to take action.

The member stated that he placed the complainant under arrest while the subject member removed the shovel from his hands. According to the member, he took the complainant's left arm while the subject member took his right, and the members struggled to take him across the street to the police vehicle as he was stiff-legged and resistant. Once at the police vehicle, the member stated that the complainant refused to get into the back seat, and the members placed him chest down on the trunk in order to handcuff him. The member explained that the complainant is a big man and was holding his arms tightly, resisting to put his arms behind his back. He stated that the subject member took out his pepper spray and stated that he was going to spray the complainant, at which point he did. The member explained that the subject member had to spray the complainant twice, as he had hidden his head under his jacket the first time. According to the member, he saw no alternative to continuing to struggle with the complainant short of using pepper spray.

The subject member's statement was consistent with that of the other member. He added that once at the vehicle, the complainant had locked his arms and clasped his hands together, refusing to let the members bring his arms back. According to the subject member, he used the arm bar technique to break the complainant's grasp and get his arm behind his back, but that he still could only get the complainant's arms down, and not behind his back. The subject member denied punching the complainant at any time.

One of the city snow removal workers stated that he witnessed the entire interaction between the members and the complainant, and that neither member punched the complainant. The snow removal worker stated that he saw one of the members use the pepper spray in response to the complainant resisting them.

The complainant's stepdaughter, who was present throughout part of the incident, said in her statement of July 17, 2003 that she remembered the complainant saying that he could not breathe while one of the members was holding his arm. She then noted that both members took hold of the complainant's arms. She stated that the complainant locked his arms and told the members to let go of him, as he could walk. According to her, the members did not let go and told the complainant that he was under arrest for not giving his name. The complainant's stepdaughter also stated that the members were forcing the complainant to walk, as he was walking slowly. She could not hear any interaction that occurred once the members and the complainant reached the police vehicle, and did not see the complainant being sprayed as she had left to get a camera. She also stated that she did not see the members punch the complainant, although she did hear him grunt before he said that he could not breathe. In another statement made to a lawyer six months later, on February 10, 2004, the complainant's stepdaughter stated that she saw the subject member punch the complainant in the ribs.

A friend of the complainant's who was also present throughout the incident stated that one of the members asked the complainant to identify himself and arrested him when he refused. She stated that the subject member took the complainant's shovel and threw it on the snowbank. She stated that the members attempted to put the complainant's arms behind him, and that the subject member quickly hit the complainant in the ribs in order to do so. The complainant's friend stated that the complainant had said that he did not need to be handcuffed. According to her, the members then dragged the complainant to the police vehicle and slammed him on the back of the vehicle, and the subject member sprayed the complainant in the face with the pepper spray. The complainant's friend stated that, after that, one member held the complainant while the other handcuffed him.

The Criminal Code empowers police officers to use reasonable force in the administration and enforcement of the law. In addition, the CAPRA problem solving model and the RCMP's Incident Management/Intervention Model (IM/IM) require that members assess risk and continually assess the appropriateness of intervening, in addition to their level of intervention. The IM/IM provides that the best strategy is the least intervention necessary to manage risk and that the best intervention causes the least harm or damage. In any situation requiring intervention, members must apply the "use of force continuum," which dictates the level of force that is appropriate to a given situation. The IM/IM states that in the case of non-cooperative or resistant individuals, verbal intervention should be used, followed by soft empty-hand control, which includes soft physical restraint methods, pain compliance, distractions and stuns, and then hard empty hand control or intermediate devices such as pepper spray.

In his complaint, the complainant identified three separate instances in which the subject member used force. According to the complainant, the subject member used force in pulling his arm back, punching him and applying pepper spray. The consistent evidence of the witnesses was that the subject member had pulled the complainant's arm back in an effort to direct him to the police vehicle and to handcuff him. I find that this was a minimal and acceptable use of force given that the witnesses noted the complainant was resistant in that he was walking slowly and locking his leg joints.

With respect to the subject members allegedly punching the complainant, the members and the snow removal worker stated that no such punch occurred. In her initial statement, the complainant's stepdaughter categorically stated that she had not seen either member punch the complainant, although she reversed her statement in another statement given six months later. I find that the former statement carries more weight, having been given within a shorter time after the incident occurred. Accordingly, I find that there is insufficient evidence to determine that the subject member punched the complainant.

All of the witnesses agreed that the subject member applied pepper spray to the complainant. The consistent evidence of the members demonstrated that the pepper spray was applied as the complainant was resistant to being handcuffed, and neither verbal commands nor lesser means of force had been effective. RCMP policy allows for the use of intermediate devices such as the spray in situations where the subject is resistant. In my view, this policy cannot be read to mean that resistance in and of itself justifies the use of devices such as pepper spray or a taser weapon. It is a judgment call that requires the member to exercise common sense. When considering how much force is appropriate, it would be reasonable to expect the member to consider the principle of proportionality, that is the amount of force used should bear some reasonable relationship to the amount of resistance the members are facing, as well as the context of the incident.

In this case, the members had reasonable grounds to arrest the complainant. He had threatened to hit the municipal employees with his snow shovel if they got out of their truck. He was uncooperative and resistant to the efforts of the members to handcuff him. He was forewarned before they used the pepper spray. Therefore, the use of pepper spray was in accordance with policy guidelines and did not amount to excessive force.

Generally, in my view it is preferable to defuse situations involving neither a major offence nor a demonstrably dangerous individual without the use of intermediate devices such as oleoresin capsicum spray. This is consistent with the IM/IM guideline that the best strategy is the least intervention necessary to manage risk. When the complainant was pepper sprayed, he was resistant, and perhaps annoying, but the members had control of him at the police cruiser and he was non-combative. He was not threatening the members or attempting to flee the scene. There was very little risk to manage. The "use of force continuum" is a two-way street and once a situation is under control, the best strategy may be investing more effort into de-escalating the situation.

SECOND ALLEGATION: The subject member used profane language.

As related above, the complainant claimed that the subject member told him, "Too bad, I call the fuckin' shot around here."

The complainant's friend stated that the members did not use any bad language, and the snow removal worker stated that he did not hear any swearing. When asked whether she had heard either member swear at the complainant or use bad language, the complainant's stepdaughter responded that one of the members told the complainant to "shut up."

The subject member did not recall saying anything remotely similar to what was alleged by the complainant. He stated that the other member was doing the talking, and that the kind of language alleged was not of the type that he himself would use.

The consistent evidence of all of the witnesses indicates that the subject member did not use profane language.

THIRD ALLEGATION: The subject member refused to identify himself.

The complainant stated in his complaint that he asked the subject member for his name after he had applied the pepper spray. According to the complainant, the subject member replied that it was none of his business.

The first member on the scene stated that he did not hear the complainant ask for the subject member's name; however, he added that there was a lot of disturbance going on. The subject member stated that the complainant only asked for his name at a later time, once they had returned to the detachment, and that he provided the complainant with his name at that time.

The complainant's friend stated that the complainant may have asked the members to identify themselves once, at the beginning of the incident. She stated that she was approximately one to two feet away from the members and the complainant at the point at which the pepper spray was applied.

There is no evidence tending to support the complainant's allegation that he asked the subject member to identify himself but that the subject member refused.

Pursuant to subsection 45.42(2) of the RCMP Act, I respectfully submit my Final Report and, accordingly, the Commission's mandate in this matter is ended.

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Brooke McNabb
Vice-Chair