ARCHIVED - Interim Report Following a Public Interest Investigation into a Chair-Initiated Complaint Respecting the Use of a Conducted Energy Weapon in Inuvik, Northwest Territories
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RCMP Act Subsection 45.43(3)
File No.: PC-2008-3149
Table of Contents
- Chair-Initiated Complaint and Public Interest Investigation
- Commisssion's Review of the Facts Surrounding the Events
- First Issue: Whether the RCMP members involved in the events that took place in March 2007 in Inuvik, Northwest Territories, where a teenage girl was allegedly subdued with the use of a conducted energy weapon, complied with all appropriate policies, procedures, guidelines and statutory requirements
- Second Issue: Whether existing policies, procedures and guidelines were adequate
- Third Issue: Whether members involved in the investigation of the incident conducted the investigation free from any real or perceived bias and in a timely and adequate manner
- Fourth Issue: Whether the existing policies relating to investigations in which RCMP members investigate fellow RCMP members are adequate to ensure fair, effective, thorough and impartial investigations
On March 13, 2007, Constable Noella Cockney of the Inuvik RCMP Detachment located in the Northwest Territories, attended the Arctic Tern Youth Facility (the "Facility") in response to a call from Facility staff for assistance in dealing with a female inmate, X.Footnote 1 Upon her arrival at the Facility, Constable Cockney was directed to a classroom where youth officers had used force to take X to the ground. When Constable Cockney entered the room there were five youth officers present, three of whom had hands-on control of X. X was lying face down with her hands cuffed behind her back. Prior to Constable Cockney's arrival, the youth officers had told X that they wanted her to proceed to the segregation area but she refused to cooperate. X swore at them and at Constable Cockney and told them she would not go to segregation.
Constable Cockney warned X three or more times that if she did not comply with the direction to proceed to the segregation area Constable Cockney would use a conducted energy weapon (CEW)Footnote 2 which would apply 50,000 volts of electricity.Footnote 3 X repeatedly stated that she would not cooperate, continued to swear at Constable Cockney and told her to go ahead and use the CEW. Finally, Constable Cockney deployed the CEW for a full five-second cycle. X yelled out, "okay, okay, okay" and after the cycle was complete cooperated in being led to the segregation area.
On April 5, 2007, X's mother sent a letter to the Facility manager complaining about X's treatment at the hands of the youth officers and the RCMP member. With respect to Constable Cockney, X's mother questioned why the CEW was used against her daughter when she was handcuffed and restrained and why Constable Cockney entered the Facility with her firearm. This letter was copied to the RCMP. As a result, a meeting was scheduled between Corporal Jim Strowbridge and X's mother for April 23, 2007. At that time, Corporal Strowbridge sought to elicit more information about X's mother's complaint and to have her sign the complaint form. She declined to do so until such time as she had been given an opportunity to speak with Constable Cockney.
Corporal Strowbridge forwarded the complaint to Staff Sergeant Sid Gray, the then Inuvik Detachment Commander, for follow-up. Staff Sergeant Gray directed Constable Cockney to arrange for a meeting with X's mother. Although at least one meeting was scheduled, it did not take place, as X's mother was unable to attend.
In August of 2007 the matter was raised again after the RCMP received an inquiry from the territorial Minister of Justice as to "the status of any investigation into the use of force" by Constable Cockney. It was determined that no investigation had been undertaken and Staff Sergeant John Milner,Footnote 4 the District Advisory Non-Commissioned Officer, was tasked with reviewing the matter. In December 2007 Staff Sergeant Milner prepared a review of the incident which supported Constable Cockney's use of the CEW and which found her entry into the facility with all of her intervention equipment, including her firearm, to be prudent. Staff Sergeant Milner attempted to meet with X's mother to explain his findings but on the advice of counsel she declined. It was only after this failed attempt to resolve the matter that the criminal investigation commenced.Footnote 5
In February 2008 Constable Kevin Charles was directed to commence a statutory ("criminal") investigation into the incident and after interviewing the various witnesses prepared an investigation report that was sent to Crown counsel for review. In May 2008 Crown counsel rendered an opinion that there was no reasonable prospect of conviction based upon the evidence reviewed and recommended that no charges be laid against Constable Cockney.
Finally, in December 2008, Staff Sergeant Milner wrote to X's mother advising that Crown counsel had recommended against laying charges and that Constable Cockney was required by RCMP policy to carry her intervention equipment with her at all times and thus had acted appropriately in so doing. A timeline of events commencing with the incident on March 13, 2007 is attached as Appendix A.
Chair-Initiated Complaint and Public Interest Investigation
On November 28, 2008, as the Chair of the Commission, I initiated a complaint, attached as Appendix B, and a public interest investigation pursuant to subsections 45.37(1) and 45.43(1) of the RCMP Act,Footnote 6 respectively, in which I raised four issues: Firstly, whether members of the RCMP involved in the incident complied with all appropriate policies, procedures, guidelines and statutory requirements; secondly, whether existing policies, procedures and guidelines were adequate; thirdly, whether members involved in the investigation of the incident conducted the investigation free from any real or perceived bias and in a timely and adequate manner; and lastly, whether the existing policies relating to investigations in which RCMP members investigate fellow RCMP members are adequate to ensure fair, effective, thorough and impartial investigations.
This report constitutes my review of the public interest investigation, conducted at the direction of the Commission by a former senior non-RCMP investigator (the "Commission investigator"), into the issues raised in my complaint, and includes the associated findings and recommendations pursuant to subsection 45.43(3) of the RCMP Act. A summary of my findings and recommendations can be found in Appendix C. It should be noted from the outset that my review is limited to a review of the conduct of the named members pursuant to Part VII of the RCMP Act and my findings are not findings of civil or criminal liability. Furthermore, my conclusions are based on the standard of proof being the balance of probabilities.
Commisssion's Review of the Facts Surrounding the Events
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. As Chair of the Commission, my role is to reach conclusions after an objective examination of the facts and, where judged appropriate, to make recommendations that focus on steps that the RCMP can take to improve or correct conduct by RCMP members.
My findings, as detailed below, are based on a careful examination of the following material: the RCMP's operational file; the criminal investigation into Constable Cockney's actions; the Commission's public interest investigation report; and applicable law and RCMP policy.
Key Participants in this Review
On March 13, 2007, the date of the incident under review, X was an inmate of the Facility located in Inuvik. The Facility provides custody and supervision for female young offenders. The Facility staff members involved in the incident described X as a big, tall 15-year-old girl with estimates of her weight ranging from over two hundred pounds to near three hundred pounds. The form used by Constable Cockney to record her use of the CEW that day, the CEW usage report, recorded X's weight as 100 kilograms (225 pounds).
RCMP members had previously been called out to assist Facility staff in dealing with X. The relevant material includes reference to a number of prior call-outs which were summarized as follows:
- Twice it was reported that X assaulted staff members;
- Twice X was acting out and staff could not monitor her so she was taken to RCMP cells; and
- Twice X was harming herself.
As a result of an altercation between X and Facility staff members, on March 13, 2007, Facility Program CoordinatorFootnote 7 Darlene Koe called the RCMP for assistance.
Constable Cockney responded to the call and attended the Facility. At the time Constable Cockney had almost 11 years experience as a RCMP member. At the time of her interview by the Commission investigator, on January 21, 2009, Constable Cockney indicated that she was 5'3" tall and weighed 150 pounds. On the incident date Constable Cockney attended the Facility in uniform and equipped with standard issue equipment which included her firearm, as well as optional equipment which included a CEW.
Staff Sergeant Milner was a team leader on the emergency response team, a use of force instructor, a basic firearms instructor, a certified master CEW instructor and he trained Constable Cockney on the use of the CEW in 2003. He also reviewed Constable Cockney's conduct as part of the criminal investigation into her conduct and as part of the public complaint filed by X's mother and authored the Commissioner's Final Report on the matter. Staff Sergeant Milner also received orders to review all CEW usages in Inuvik. During the course of his review of this incident Staff Sergeant Milner acted both in his capacity as a CEW expert and as "G" DivisionFootnote 8 North District Advisory Non-Commissioned Officer.
Interactions with Facility Staff Members on March 13, 2007
As part of her routine while at the Facility, X had a lunch break from her school work at about noon. She left the classroom area and went to the secure area of the Facility where she completed her chores. After lunch she met with her mother and Youth Officer Beatrice Donovan, both of whom encouraged her to take her prescribed anti-depressant medication. X became agitated and refused to take her medication. She got up suddenly, left the interview room and headed to her classroom.
At approximately 1:00 p.m. X entered the classroom in which three other youth inmates were being taught. She sat down at one of the desks, put on a set of headphones and began listening to music and banging on her desk. The teacher asked X to leave the classroom but X refused.
Ms. Donovan, who had followed X into the classroom, repeatedly requested that X proceed to isolation.Footnote 9 However, X refused to comply. The other students were directed to leave the room and left promptly accompanied by their teacher. A short time later, Ms. Donovan briefly left the classroom and advised Ms. Koe, who was in the control room,Footnote 10 that RCMP backup was needed because X would not listen. At least one of the youth officers, Ms. Diane Soucy or Ms. Kim Trudel, remained in the classroom. Ms. Koe called for Youth Officers Margaret Hope and Michelle Richards, who were in another unit taking a training course, to assist Ms. Donovan. Ms. Koe stated that these individuals were chosen because they had the requisite training and experience to deal with volatile situations; in particular, they had use of force training. Upon their arrival, Ms. Koe gave them a brief update indicating that there was an incident involving X going on in the classroom.
When Ms. Hope and Ms. Richards entered the classroom, Ms. Hope tried to engage X in conversation. Although she was able to discern that X was upset with staff members for wanting her to take her medication, she was not able to calm X down.
The total number of youth officers at this point was five. According to Ms. Hope, she noticed that X was becoming more agitated with the increasing presence of youth officers and she asked Ms. Donovan to step outside for a moment. Ms. Hope reported that once outside the classroom she suggested to Ms. Donovan, "we need to take her down and we need to do it now because somebody, someone's going to get hurt or she's going to get hurt."
From the video feed in the control room, Ms. Koe observed X flip a desk. She also noted that X could access the teacher's desk, which contained scissors and sharp objects. This was particularly significant because X had a history of self-mutilation. It was at this time that Ms. Donovan called for backup. Ms. Koe called the RCMP and requested assistance "because one youth is out of control and won't cooperate."
Upon re-entering the classroom, Ms. Donovan along with Ms. Richards took a position on either side of X and Ms. Hope moved to a position about two metres in front of X. She then advised X that they needed to escort her to segregation. X refused and challenged the staff members asking what they were going to do about it. Ms. Donovan placed her hand on X's shoulder and X swung at her. Ms. Hope grabbed X's right arm and the youth officers took X to the ground.
Ms. Donovan called for handcuffs and one of the youth officers retrieved a pair. X was handcuffed with her hands behind her back by Ms. Hope with the assistance of Ms. Soucy.Footnote 11 Shortly thereafter Constable Cockney entered the room.
Involvement of Constable Cockney
Constable Cockney responded to the call for assistance and Ms. Koe let her into the building. Constable Cockney reported that she was aware that the call involved X while en route and that she had known X for many years. Ms. Koe stated that Constable Cockney had her CEW out when she entered the building and that she proceeded directly to the classroom when it was pointed out to her. When Constable Cockney entered the classroom, X was lying on her stomach with her hands cuffed behind her back and Facility staff members were directing X to get up. Ms. Hope reported noticing Constable Cockney enter the classroom with the CEW in hand. Each of X's arms was secured by a staff member and one youth officer was sitting straddling her legs. Constable Cockney did not initially realize that X was handcuffed but was advised of this by one of the staff members.
By all accounts, including Constable Cockney's, she asked X to cooperate several times. X repeatedly refused to comply and by some accounts kept struggling. She was swearing throughout and daring Constable Cockney to go ahead. Finally, Constable Cockney deployed the CEW in push stun modeFootnote 12 onto X's back for five seconds. X yelled "okay" a number of times and thereafter complied with directions. She was escorted to segregation by Ms. Donovan and Ms. Hope in the company of Constable Cockney.
Constable Cockney's Qualifications
The investigation into Constable Cockney's conduct revealed that she was certified in the use of the CEW on February 12, 2003. RCMP policy stipulated:
1.2 Only trained members and certified instructors who have successfully completed the CEW Operator Training Course or the CEW Instructor Course are permitted to use this device.
1.3 Members certified to operate the CEW must re-qualify every three yearsFootnote 13 [emphasis added].
Given that the date of the incident was more than four years after Constable Cockney's original certification, it was anticipated that she would have completed a requalification prior to the incident date. The Commission requested confirmation of the recertification to which the RCMP responded that Constable Cockney had not been recertified prior to the incident under review. Accordingly, I find that pursuant to RCMP policy Constable Cockney was not qualified to use a CEW.
I cannot find evidence that the RCMP has instituted protocols which would ensure that only certified members are able to access the CEW. Steps should be taken to put appropriate mechanisms into place to prevent non-qualified members from having access to CEWs.
While I have already found that the use of the CEW was not permissible because of Constable Cockney's lack of certification, I will also consider the issue of whether a properly certified member would have acted appropriately by deploying the CEW in the circumstances of this case.
RCMP Guidelines on CEW Use
The RCMP guidelines for use of the CEW include specific policy relating to CEWsFootnote 14 and the Incident Management/Intervention Model (IM/IM).Footnote 15 The IM/IM may be simplistically described as a use of force model. From their earliest days of training as cadets, members are exposed to the IM/IM. This model is designed to aid members formulate appropriate intervention responses by considering a host of factors which may be relevant in the varied interactions carried on between the police and the public on a daily basis. A graphic model of the IM/IM, in its form at the time of the incident, is attached as Appendix E.
The key element of the IM/IM is the CAPRA problem-solving model.Footnote 16 The CAPRA model requires members to consider all relevant situational factorsFootnote 17 when determining what actions to take including whether to use force and, if so, the necessary amount of force to use under the circumstances. These factors are the basis upon which a member will make the assessments called for in the IM/IM. Members are required to assess the risk posed by a subject, after which they make a determination of the appropriate level of response, which may include the use of force.
In formulating the course of action to be followed, members must consider the behaviour of the subject. The IM/IM lists subject behaviours as ranging from cooperative to non-cooperative to resistant to combative to posing the threat of death or grievous bodily harm. Members must also take into consideration the risk posed by the subject.
In general, once a member makes a determination as to the behaviour and risk posed by a subject, he or she must then choose an appropriate response. Early intervention options include officer presence, verbal intervention and physical control. As the threat increases, the member may turn to greater levels of physical force, intermediate weapons (OC sprayFootnote 18 or CEW), impact weapons (baton) and finally the application of deadly force.
The underlying principles of the IM/IM stress the safety of the public and the member. They define the best strategy as the use of the least amount of intervention to manage a risk. Accordingly, the best intervention causes the least amount of harm.Footnote 19
At the time of this incident, the CEW was classified as an intermediate device.Footnote 20 Weapons in this category could be used against subjects who exhibited resistant behaviour or more threatening types of behaviour, such as being combative.
Constable Cockney's Written Reports
i) Notebook Entries
The IM/IM clearly sets out the need for a thorough legal articulation of the member's rationale in cases involving use of force and sets out 29 questions as examples of issues that may be addressed when reporting such incidents.Footnote 21
While Section 25 of the Criminal CodeFootnote 22 established protection from liability for a peace officer who, in the course of enforcing the law, finds it necessary to use force, the onus is on the peace officer to justify not only the fact of having used force, but also the degree of force used. The prospect of civil liability also requires the member to bear in mind the notions of negligence and duty of care. A detailed record of all the circumstances surrounding the incident should be kept by the peace officer, in order to document the peace officer's justification and care in using force.
It is critical to record in as much detail as possible, as soon as possible after the occurrence of use of force, a full description of the force actually used, and a full description of all the indicators of potential or actual violence which would explain the peace officer's apprehension and justify the resort to force and the degree of force utilized. That is the trade-off in order to benefit from the protection afforded by Section 25 of the Criminal Code [emphasis added].
RCMP policyFootnote 23 of the day also spoke specifically of the importance of maintaining proper notes:
2.1. The member's notebook is a fundamental investigative tool. It is essential that notebooks be properly compiled, complete and accurate in order to support investigations, corroborate evidence and increase the credibility of a member's testimony in court. Properly recorded entries (notes) may also prove to be invaluable in substantiating information years after an investigation.
2.2. You may use notebook entries to refresh your memory for court if the notes were made at or near the time of the occurrence.
2.3. If you are performing operational duties, use and maintain an up-to-date notebook. Record the date for any operational assistance in your notebook.
Constable Cockney made no notebook entries in relation to this incident. As such, the benefits conferred by the maintenance of a complete and thorough notebook were lost in this case.
ii) Occurrence Report – Printed December 7, 2007
Although failing to make notebook entries, Constable Cockney did prepare electronic written reports of the incident, which provide the most contemporaneous record of her rationale and recall of the incident.Footnote 24 In her occurrence report, which is undated but was printed on December 7, 2007 and located in the material associated with X's mother's public complaint , Constable Cockney summarized her interaction with X as follows:
Attended the facility and [X] would not cooperate or listen to any commands. Member advised [X] if she did not listen she would be tazered, and it will generate 50,000 volts of electricity through her. [X] advised she did not care. Member repeated the tazer warning two more times and responded that she did not care. Member tazered [X] and then [X] cooperated with members of the youth facility and member. Advised [X] if she acts up again, RCMP will have to come down again and we do not want to do this [emphasis added].
This summary description does not provide sufficient detail to particularize X's behaviour or threat cues nor Constable Cockney's thought process in determining why the use of the CEW was appropriate. In fact, the narrative would seem to indicate that Constable Cockney's main focus was on X's failure to do as she was told and not because of any perceived threat to her or anyone else.
iii) Occurrence Report – Printed November 28, 2008
The material disclosed by the RCMP included a second copy of Constable Cockney's report which is undated but was printed on November 28, 2008Footnote 25 and appended to Constable Charles' February 2008 investigation report. The significance of this copy arises from the substantive amendments as compared to the earlier version. Unlike the original occurrence report reviewed above, this second version added significant details interspersed throughout the paragraph quoted in the preceding section. These details dealt largely with X's behaviour but failed to record that X was handcuffed during her interactions with Constable Cockney:
The workers of the facility had her laying on her stomach and were holding her arms and legs. [X] was pulling and kicking, trying to get up or away from the workers. [...] [X] became more aggitated and was swearing and pulling harder at the workers to let go. [...] and continued to pull and swear at individuals in the room. [...] swearing and pulling away. Member showed [X] the tazer and warned her once again about the tazer. [X] swore at the member and was still trying to pull away from the workers. Member advised the workers she was ging to tazer X [...] [After the CEW was used] X cooperated with the members of the youth facility and member [sic throughout].
This passage amounts to the only written documentation which portrays X's conduct in this light. There was no explanation in the file as to why the Report was revised.Footnote 26 When asked if he knew how the alterations to the document had occurred, Staff Sergeant Milner advised that after reviewing the original occurrence report in December 2007 he spoke to Constable Cockney and told her that the report contained insufficient detail and she needed to articulate what she had done. Therefore, it was following this conversation that Constable Cockney presumably made the amendments to the occurrence report.Footnote 27
- 1) the changes were made almost nine months after the original incident occurred and the original Report was prepared;
- 2) the changes were directed to be made to reflect the IM/IM;
- 3) the changes failed to record the fact that X was handcuffed;
- 4) no notes were made regarding the conversations between Staff Sergeant Milner and Constable Cockney leading up to her revisions; and
- 5) there was no written record that the occurrence report had been altered;
I conclude that this report cannot be relied upon and I afford it no weight in my deliberations.
iv) CEW Usage Report – Undated
At the time of the incident the policy relating to reporting CEW usage read as follows:
5.1. Each time the CEW is used, record on the investigative file, as well as your notebook, the time, date and location; if the CEW was in stun or probe mode; a description of the circumstances; and whether the CEW Challenge was given.
5.2. Complete [the CEW usage report] within 15 days every time the CEW is used.
5.3. Record on the investigative file any apparent or alleged injuries or medical afflictions caused by the CEW.
5.4. Each time the CEW is used, notify your supervisor.
5.5. Follow division directives for reporting to your division.
In addition to the occurrence report, Constabhe type of detail expected of a member when providing a legal articulation of le Cockney completed a CEW usage report, which is a form designed to generate this or her actions after having used a CEW. The type of call was listed as a non-domestic assault. The incident summary is identical to the description found in the occurrence report except that one sentence was expanded upon as follows: "Member repeated the tazer warning two more times and responded that she did not care, and continued to resist the workers at Arctic Tern [emphasis added]." This brief and non-specific phrase was the only written notation made by Constable Cockney, aside from the revised occurrence report to which I afford no weight, that elevates X's behaviour above non-cooperative. This document was prepared on the evening of March 13, 2007 and was not modified thereafter.
Responses to two questions posed in the CEW usage report were of interest in assessing Constable Cockney's actions. In response to the question, "Did the threat or the use of CEW avoid injuries to subject or Police?" Constable Cockney responded in the affirmative. However, she did not provide any explanation beyond the incident summary referred to above. More importantly, Constable Cockney also answered yes to the following question, "Did the threat or use of the CEW avoid use of lethal force?" Again, there is no narrative to support this position and it flies in the face of all of the other evidence, including that derived from Constable Cockney's subsequent statement to the Commission investigator.
Constable Cockney's response is consistent with how many of the members have been completing these reports. The Commission analyzed the RCMP use of the CEW in the 2008 calendar year.Footnote 28 The analysis revealed that, of the 1,106 times that the CEW was used in 2008, the use was documented as having avoided the use of lethal force in more than half of all cases, almost 600 times. In the majority of cases these designations did not reconcile with the members' narratives and points to a systemic problem with RCMP reporting.Footnote 29
v) Summary of Constable Cockney's Written Record
My review of the documentation associated with the operational file leads me to conclude that Constable Cockney inadequately documented this incident. In particular Constable Cockney:
- 1) failed to make proper notebook entries;
- 2) failed to particularize the events in accordance with RCMP policy relating to the CEW;
- 3) failed to describe the events, actions and rationale sufficiently to allow for a review of her conduct; and
- 4) failed to record her supervisor's name on the CEW usage report.Footnote 30
The end result is that, after reviewing the written documentation prepared by Constable Cockney in the aftermath of the incident, X's behaviour can only be characterized as being defiant and uncooperative. Furthermore, neither the occurrence report nor the CEW usage report mentioned the fact that upon Constable Cockney's arrival X was lying face down with her hands handcuffed behind her, that three guards were restricting the movements of her arms and legs, and that two more guards were standing nearby.
From their earliest days as cadets, RCMP members are taught the importance of legal articulation of their actions. While this articulation is important in relation to clarifying all manner of police actions, it is all the more critical in situations where a member has used force against a subject. Subsection 25(1) of the Criminal Code of CanadaFootnote 31(the "Code") reads:
25. (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law
- (a) as a private person,
- (b) as a peace officer or public officer,
- (c) in aid of a peace officer or public officer, or
- (d) by virtue of his office,
is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.
The actions of members are ultimately to be judged against this standard.
The written record prepared by a member may be the only timely description of events if the matter is later reviewed. That is exactly the case in this review. The method of assessing the adequacy of the member's articulation is to determine whether sufficient detail exists to permit an objective assessment of the member's actions against the standard set forth above. In the circumstances of this case, Constable Cockney did not adequately explain her actions either in accordance with policy requirements or, more importantly, as measured against the framework of subsection 25(1).
Facility Staff Incident Reports
As part of their duties, Ms. Donovan, Ms. Hope, Ms. Soucy and Ms. Richards prepared incident reports which summarized the events of that day. These reports were prepared variously from within hours to days of the incident and were reviewed during the course of this investigation. In each report there exists a similarity in the description of events upon Constable Cockney's arrival. First, the youth officers all speak to X being placed in handcuffs and then immediately follow up their accounts with the arrival of Constable Cockney. Importantly, none of the youth officers report any actions of aggression or resistance on the part of X from the time of her handcuffing. They all confirm that Constable Cockney asked X to cooperate and that she warned X that she would use the CEW if she did not do so. Ms. Donovan, who prepared her report in the timeliest fashion at 4:49 p.m. that day, reported,
After she was cuffed, RCMP Officer NOELLA COCKNEY went into the classroom to assist with the situation. I told [X] she was going to her dorm and we would help her up. She refused to cooperate and stated she was not walking there. NOELLA then told [X] she would use the tazer gun if she does not cooperate and walk to her dorm. [X] stated she did not care and NOELLA asked her again if she would cooperate. [X] then again refused to cooperate. NOELLA stated she was going to use the tazer gun and made the motion for MARGARET and I to let go of [X]. NOELLA had the tazer gun on the middle of [X's] back and used this for 5 seconds as per NOELLA. [X] then stated she would cooperate with the move after being tazered [emphasis added].
All of the statements are similar in leaving the reader with the impression that Constable Cockney's motivation in ultimately using the CEW was to force X's compliance with the demand to walk to segregation. Likewise, the reports describe X's response to the deployment of the CEW, not as ceasing any physical struggle or resistance, but rather in cooperating by proceeding to the segregation cell. They are strikingly similar to Constable Cockney's reports, especially in that they too are silent as to any risk or threat posed by X after she was handcuffed.
While RCMP policy did not require the existence of a threat as a prerequisite for CEW use, this issue remains relevant as a factor in determining the more important issue of whether the member's actions are justified pursuant to subsection 25(1) of the Code. In particular, when assessing the necessity in the use of force applied.
Statements of Facility Staff taken by RCMP Investigator
As part of the criminal investigation, statements were taken from the Facility employees in February of 2008 almost a year after the incident. A number of the statements contained expressions regarding the effect of the passage of time on the recollections of the witnesses but for the most part I found them to be consistent with the comments found in their earlier incident reports.
The one statement in which there was a significant departure from the narrative contained in the incident reports was that of Ms. Donovan who stated,
We did have [X] down, she refused to move, she refused to cooperate, she was still fighting and um, Noella came in, she asked if [X] was going to comply. She refused, she was swearing at all of us, swearing at Noella and absolute just, she wouldn't, she wouldn't move, she wouldn't. We gave her the choice to walk on her own or we would make her walk and she wouldn't. And then Noella uh, um, informed her like if she doesn't cooperate, if she doesn't comply she will Taser her and [X's] like "I don't care. I don't care." and she still kept fighting so Noella just, we did have the cuffs on her and stuff but she wou, she kept fighting. Like kicking and trying to get out of our hold and roll over on to her back and that's when Noella put the Taser on her [...] [emphasis added].
While her statement was consistent in referring to Constable Cockney's desire to have X walk to segregation, it also described X's behaviour as more aggressive than she or any of the other staff members had previously recorded. Additionally, in contradiction to the comments in her incident report, she recalled Constable Cockney using the CEW twice because X continued to fight, which is at odds with all other accounts.
Ms. TrudelFootnote 32 recalled that, after being handcuffed, X refused to leave the classroom and was too heavy to lift so "obviously she'd have to go willingly." When directly questioned about whether X offered any physical resistance, Ms. Trudel replied: "Trying to fight her way, struggling with the handcuffs and that sort of idea." She also opined, "[...] it's unfortunate what happened, but it was also necessary."
Ms. Richards recalled that when X was taken down she started to struggle but there were enough youth officers to handle her. Once Constable Cockney arrived she recalled, "Everybody was just standing around, telling her to get up and walk, I remember that's what, you know, we were trying to get, she's a big girl [...] at first everybody was telling her to get up [...] she wouldn't." Ms. Richards left the classroom before the CEW was deployed. In describing X's behaviour after being handcuffed she responded that X "was still stubborn."
Ms. Hope stated that Constable Cockney arrived within seconds of X being handcuffed and that Constable Cockney had her CEW out. In response to questioning from the RCMP investigator, Constable Charles, Ms. Hope stated the following:
KC: Ok, now how was [X] behaving at that time, when she was handcuffed?
MH: Well she couldn't move. Like, you know, she was on her, her on her stomach. Her handcuffs were behind her back and so she, like we had, we had her, like she couldn't, she couldn't have hurt, like if she probably could have kicked her feet back and forth, but she like, it didn't happen because already Cst. Cockney was there.
KC: Ok, now you and the other employees, were you still holding her down at that time? When she was handcuffed?
MH: Well ya, I was, I was. Ya, I, I was still there. Ya, I was still kneeling on the floor holding the handcuffs and...
KC: What was [X] doing? Was she still, was she physically struggling still, or had she calmed down?
MH: No, she wasn't struggling. She, I mean, she couldn't do nothing.
KC: Did she try to stand up or roll,
MH: Uh, un.
KC: over? Was she kicking her legs, or anything like that?
KC: Was anybody holding her feet?
MH: Um, Diane. Diane was sitting, sitting on her, like sitting on her legs up, her thighs, sitting on her thighs.
KC: So was she under control. She wasn't going anywhere then.
MH: Un, mn.
MH: She was contained. [emphasis added]
Statements of Facility Staff taken by Commission Investigator
The Commission investigator managed to interview some Facility witnesses in January of 2009. All of these witnesses reviewed their prior statements taken by Constable Charles before providing their new statements. Summaries of their versions of events are included below.
Ms. Donovan's recollection of events again painted X's behaviour in the most aggressive light. She described that, after X was handcuffed, X tried to roll over potentially to kick the youth officers. She stated that X was kicking her feet and almost caused Ms. Soucy, who was holding her feet, to fly off.Footnote 33 She noted X banging her head on the floor and trying to bang her arms, shoulders and legs into the floor. She indicated that at that point they were trying to prevent her from hurting herself. As in her original statement she referred to Constable Cockney deploying the CEW a second time because X continued to fight after the first CEW deployment.
Ms. Trudel was specifically asked if she felt that X posed a threat after being handcuffed and responded "No." She indicated that after she was handcuffed the goal was to "Get her into her dorm." She suggested that, although the youth officers may have been able to drag X the thirty or forty feet down the hall, X could have injured them or damaged the Facility in the process.
Ms. Richards stated that she left the classroom just after Constable Cockney arrived. She recalled that X remained defiant after being handcuffed but did not pose a threat. However, she also pointed out that if X were picked up she could become a threat by kicking.
Ms. Hope indicated that subsequent to the handcuffing X could not move and did not try to roll around. When asked whether the five youth officers could have dragged X to the segregation cell, Ms. Hope responded, "If we were given the opportunity, we probably we would have." She also volunteered her own option which was that in a matter of two, three, four or even five minutes X would likely have become uncomfortable enough to cooperate and that there would have been no harm in waiting ten to fifteen minutes. She recalled that X was swearing and uncooperative but not kicking. She stated that she did not anticipate X posing a threat if dragged to segregation and described "not cooperating" in terms of not walking to segregation.
I note that none of the statements suggested the use of leg restraints although they were available in the Facility. Furthermore, the statements were all consistent in noting that X complied with direction after the CEW was used and walked to segregation without further problems.
X's Statement to the Commission Investigator
There is no indication in the material provided by the RCMP that any attempt was made to obtain a statement from X. However, she did agree to be interviewed by the Commission investigator in January of 2009. X recounted her dispute with the youth officers on March 13, 2007 and readily admitted that she was angry at staff members that day and had flipped over desks in the classroom. She recalled being taken to the ground and handcuffed. She also recalled Constable Cockney arriving when X was pinned to the floor and asking X to calm down to which X responded that she would not. In response to questioning about her actions subsequent to Constable Cockney's entrance and what she was doing that could have required her to calm down, X stated that she may have been swearing but was not doing anything else.
Constable Cockney's Statement to the Commission Investigator
Constable Cockney declined to provide a statement during the criminal investigation. She did, however, provide a voluntary statement to the Commission investigator notwithstanding that she reported being counselled against doing so by her lawyer and staff relations representative.Footnote 34 Prior to giving her statement, Constable Cockney had the opportunity to review the response from Crown counsel setting out the reasons why charges would not be recommended.
Constable Cockney advised the Commission investigator that she had been advised that X was involved in the incident prior to arriving at the Facility and that she had known X since she had been transferred to Inuvik, roughly in the year 2000. She stated that upon entering the classroom, she observed a number of people standing around over X with at least a couple of people holding her down. She mentioned having some difficulty remembering some of the events due to the passage of time. This is understandable given that the statement was given approximately 22 months after the incident and she failed to make contemporaneous notes which could have otherwise assisted her in her recollection of events.
She acknowledged that she became aware of X being handcuffed. She recalled speaking to X,
I told her, you know, to cooperate with the workers and everything like this and then she started swearing and everything like this and then so... I told her lookit [sic], if you're not going to be cooperative and that, then the taser... you'll get tasered with 50,000 volts of electricity.
Later in her statement, Constable Cockney indicated that her goal was to get X into segregation. It appears that she considered only two options. The first was to walk X to the cell while she was still defiant and she might use her body and legs to resist. The second was to gain full compliance by subjecting X to the pain stimulus of the CEW, which when ultimately used had the intended effect of eliminating all resistance.
These were not the only options however. As noted by two of the youth officers, X was in a very uncomfortable position on the floor and, according to Ms. Hope, would likely have submitted in time. Even Ms. Donovan, who described X in the most aggressive terms agreed with this proposition.Footnote 35 Additionally, the Facility had leg restraints which could have been used to counter concerns about X using her legs but Constable Cockney never questioned Facility staff as to their availability. Ms. Richards commented that, if Constable Cockney had not arrived when she did, the youth officers may have moved X to the teacher's chair until she settled. It was also suggested that X could have been carried or dragged to her cell. All of these options remained available even after Constable Cockney's arrival with the CEW in hand.
Constable Cockney also mentioned in her statement that her recollection was affected by everything happening so fast. While the Commission recognizes the dynamic nature of these events, the speed with which events unfolded appears to be a direct result of Constable Cockney's decision-making. Even when given the opportunity to clarify her threat assessment in her statement to the Commission investigator, Constable Cockney remained somewhat ambiguous as to the specifics of X's conduct which necessitated the use of the CEW. Her description of the threat posed by X involved an observation as to X's size and the fact that she was not in control. "There's no way I was going to let her get up without her being in my control. Because if she did something all she had to do is just push me a little bit and then no... I could have been on my ass as well. It was ... I wanted control of her before she actually got onto her feet."
The most telling similarity in the information before me is that the witnesses consistently linked the CEW warning issued by Constable Cockney with X's compliance in walking to segregation and not with any suggestion that she stop struggling, fighting or kicking. Neither the incident reports of the guards nor Constable Cockney's original occurrence report describe X's behaviour subsequent to being handcuffed as posing a threat or warranting the use of the CEW.
While the later statements of some the youth officers described X in more aggressive terms than any of the written reports, three of the four youth officers interviewed as part of the Commission investigation clearly indicated that X either posed no threat or was under control. Upon consideration of all of the information before me, I conclude that X was verbally defiant and minimally resistant. While X may have struggled against her handcuffs, the evidence does not support that X was kicking but rather was under the control of the youth officers when Constable Cockney entered the room. I conclude that, at the time that Constable Cockney used the CEW, X posed no threat to either herself, Constable Cockney or the youth officers who were restraining her while lying face down with her hands cuffed behind her back. The IM/IM called for careful and ongoing risk assessment, which is far from what Constable Cockney engaged in.
Additionally, I find that Constable Cockney did not consider other options prior to deploying the CEW, as required by policy.Footnote 36 In reviewing her evidence I am struck by Constable Cockney's apparent single-minded focus in seeking to have X get to her feet and walk of her own volition to the segregation cell without Constable Cockney having to have any physical contact with her. There is no indication that she gave any consideration of the other options later offered up by the youth officers. The use of the CEW in these circumstances, in which there were at least six adults available to control X and there was no urgency to act because she was subdued, was not reasonable and demonstrated a serious disregard for the degree of pain being inflicted by the CEW.
The RCMP policy governing CEW use at the time dictated, "The CEW must be used in accordance with the principles of the RCMP's Incident Management/Intervention Model."Footnote 37 The IM/IM of the day was discussed generally above.Footnote 38 In the circumstances of this case the CEW was an intermediate weapon which could be appropriately used against subjects demonstrating resistant or more threatening levels of behaviour. Although the graphical model positioned the use of CEWs in the mid-range of the resistant category of subject behaviour, there was no clear delineation of the degree of resistance at which the CEW could be appropriately used.Footnote 39
Even taking into account the latitude available to a member in exercising her discretion, I am not satisfied that the use in this instance was reasonable. Policies, procedures and guidelines relating to the use of force are merely tools to assist members to act in a principled manner.
The review of Constable Cockney's conduct by Staff Sergeant Milner highlights what the courts have identified as a cause for concern in the use of the Footnote 40 Staff Sergeant Milner's December 10, 2007, report stated:
Cst. COCKNEY indicates that when she arrived [X] was displaying resistant combative behavior by kicking and pushing. The staff did not have complete control of [X] and Cst. COCKNEY used the least injurious intervention to gain compliance. To use other intervention options may have caused more injury to [X] [emphasis added].
While Staff Sergeant Milner and I disagree with respect to the characterization of X's behaviour, the more important issue in this discussion is the highlighted section of the preceding passage. Staff Sergeant Milner used language which is consistent with the seven underlying principles that governed the use of the CEW at the time of the incident, in particular that the best intervention causes the least amount of harm. This is an important principle. The danger in its application arises from failing to appreciate the harm caused by an intervention technique. The above passage leaves the impression that the CEW is automatically the "least injurious intervention," especially given that Staff Sergeant Milner did not explore other intervention options.
This issue has been a cause for concern for the Commission from the earliest CEW reviewsFootnote 41 and was dealt with more extensively in the Commission's review of CEW use by the RCMPFootnote 42 at the request of the Minister of Public Safety.
In the Hannibal case, Judge Challenger addressed the need for police officers to be aware of the adverse effects of the CEW:
The RCMP and other forces should consider the taser's potential for superficial burning and tissue damage which can create scabbing and scarring. The taser creates extreme pain and can create instant, complete incapacitation. Conventional pain compliance techniques can be carefully controlled by the officer administering them. The amount of pain inflicted by the taser cannot be adjusted [emphasis added].
The Commission has raised past concerns that the RCMP had demonstrated a lack of appreciation for the pain inflicted by the CEW. In fact, the RCMP assessments of the harm caused by CEW use left the impression that the pain caused was no more than an afterthought. This led the Commission to recommend that the RCMP engage in research relating to, amongst other things, measurement of the pain caused by the CEW and assessment of the appropriateness of CEW use against other forms of intervention.Footnote 43 The report also recommended that the CEW be repositioned in the IM/IM.Footnote 44 I do not find that the situation confronting Constable Cockney necessitated the degree of force used. Furthermore, nowhere does Constable Cockney indicate that she considered the CEW to be the best intervention option or that it would cause the least amount of harm. This position was the rationale used by Staff Sergeant Milner after he reviewed the incident. I recognize that he formulated this opinion after making the determination that X was resistant and combative, a position with which I hold a contrary view.
Staff Sergeant Milner's commentary gives the impression that he automatically designated the use of the CEW as the least harmful intervention. In his December 10, 2007, report he gives no indication as to what other options were available or considered. Constable Cockney indicated on the CEW usage report that the use of the CEW avoided injury and the use of "lethal force." When questioned about this, Staff Sergeant Milner suggested that the use of the CEW de-escalated the situation and avoided the potential for the interaction to become more violent to the point where lethal force might have to be used. He stated:
A: The way the form is built is it's either yes or no, and I... she just selected yes. And I think that, you know, did it prevent lethal force? She used a less injurious method of gaining control, so yes it did. She didn't have to... she didn't have to revert to that. She didn't... I don't... The situation never escalated to the point of even having to think of that, so she just put yes it did, I used a less lethal intervention.
Q: So but... By that rationale then, could you not state that in any altercation whatsoever, no matter how minimal, that you are potentially preventing the escalation to the point where you would have to use lethal force?
A: Oh any... Well, that's use of force. We use the least injurious method of gaining control. But if we don't gain control we can end up with way more serious events. But why she said yes in there, I don't think I can answer that for you. She has to answer why she said yes. And it's... I... If the prior use of the CEW avoided use of lethal force, she didn't have to even think of that because the CEW was the least injurious method of gaining control [emphasis added].
I could not disagree more. Even if X was combative as held out by Staff Sergeant Milner, I do not believe that any reasonable scenario could be envisioned such as to suggest that X could pose the threat of grievous bodily harm or death. Such rationalizations leave the impression that the members who use the CEW and the experts who assess their conduct are merely using policy and training protocols in a theoretical manner, absent connection to the factual scenarios at play, to justify ex post facto the member's actions. In other words, RCMP policy and the IM/IM appear to be no more than a convenient template to mount a defence and engage in bare speculation whenever a CEW is used.
I also note that Staff Sergeant Milner repeated an observation made by all of the youth officers and by Constable Cockney, that being that once the CEW was used X did exactly what she was told. Given the facts as I have found them, this paints a picture in which the RCMP views the use of the CEW as a come-along to be appropriate. That is to say that the member wanted X to walk to the segregation cell and she did, so what is the problem? The problem would be that in assessing police conduct it is not enough to suggest that the ends justified the means. If this were so, then it would have been equally acceptable to threaten to strike X with a baton if that prompted her to follow the member's orders.
While I have consistently maintained that the CEW can be a useful police tool and in some cases can save lives, I remain concerned that the dangers identified by Judge Challenger in viewing the CEW as a panacea for low-risk interventions remain. It remains to be seen whether the changes made by the RCMP will be sufficient to allay those concerns and the Commission will continue to monitor that use closely.
Subsequent to the events under review, the Commission prepared an interim and final reportFootnote 45 on the RCMP's use of the CEW, at the request of the Minister of Public Safety. The Final Report contained twenty-two recommendations for immediate implementation. Since initiating this complaint and the associated public interest investigation, the Commission has prepared a report statistically analyzing RCMP use of the CEW in 2008. Additionally, the RCMP has made some changes to its policy which it states are designed to respond to some of those recommendations.
Finally, in January of 2009, I initiated a separate complaint into all in-custody deaths proximal to CEW use since 2001.Footnote 46 That report will be reviewing all the iterations of RCMP policy as they relate to CEW use and will respond to this question in a broader manner than the circumstances of this case would call for. Accordingly, save for the comments contained above in relation to the adequacy of the policies, procedures and guidelines that existed on the incident date, I shall reserve my comments on the policies, procedures and guidelines as they apply to the CEW until I report on my more recent complaint into in-custody deaths.
One policy issue raised by X's mother in her complaint was the decision by Constable Cockney to bring her firearm into the Facility. According to the Warden, the Facility had a policy that firearms were to be checked into a locker and that the Facility had a metal box in which the RCMP were to lock all firearms. Constable Cockney indicated that she had used the lock up on previous occasions but that as this was a disturbance call she did not feel comfortable entering the Facility without her firearm.
Staff Sergeant Milner was unaware of the Facility policy. He noted that the RCMP policy required members to carry a pistol while in public and that the holsters were designed to varying degrees to guard against subjects drawing a member's firearm. He considered Constable Cockney's decision to carry her firearm into the Facility to be appropriate since she was entering for operational and not administrative reasons.
Each of these policies seeks to serve a desired end. One would think that, when competing policies exist in an environment in which the RCMP is frequently called upon to act, the parties would speak to the issue in the hopes of coming to a mutual understanding, in the form of an operational plan. In this case the door to the Facility was opened for Constable Cockney and she was not challenged by Facility staff about carrying her gun inside. Staff Sergeant Milner suggests that in cases where a member would be barred from entering a prison it would be up to the member to decide what to do, which I take to mean whether to enter without the firearm or not to enter at all. This less than straightforward approach to policing the Facility in leaving the decision-making to the individual member was not acceptable. A comprehensive approach should include advance planning that all members can follow.
Third Issue: Whether members involved in the investigation of the incident conducted the investigation free from any real or perceived bias and in a timely and adequate manner.
RCMP Response to X's Mother's Complaint at the Detachment Level
On March 30, 2007, Inspector Parker Kennedy, from the Divisional Headquarters in Yellowknife, emailed Staff Sergeant Milner and indicated that the Director of Corrections of the Northwest Territories government wanted to discuss the incident involving X. Inspector Kennedy also indicated that he had provided Staff Sergeant Milner's name because of his expertise and because he could help explain the circumstances in which a person in handcuffs could be subjected to a CEW deployment. During the Commission investigation, Staff Sergeant Milner stated that the meeting never took place because the Facility shut down for training and the meeting was cancelled.
On April 5, 2007, X's mother wrote to Ms. Roslyn Watters, the Facility Manager,Footnote 47 as a follow-up to a meeting between the two of them on March 28, 2007. Amongst others, this correspondence was copied to the RCMP. The relevant portions of her letter as they relate to RCMP involvement in the incident are set forth below:
[X] indicated that she was laying down on her stomach, with her hands cuffed behind her back.
What disturbs me the most was the fact that she was handcuffed at the time of being tazored, it is apparent that she was of no harm to anyone, or to herself. I can not comprehend, or to even try and justify and understand why and how could that of happended in the facility, and to hear it from my daughter [sic throughout].
While the record is not perfectly clear on the timing, it appears that on or about April 23, 2007, X's mother met with Corporal Strowbridge at his request. At the meeting he presented a complaint form that he had prepared as a follow-up to X's mother's complaint to the Facility. She declined to sign the complaint form and indicated that before doing so she wanted to discuss the matter with Constable Cockney. On that basis, Corporal Strowbridge forwarded the matter to the then Detachment Commander, Staff Sergeant Sid Gray,Footnote 48 who took carriage of the file. He directed Constable Cockney to contact X's mother and arrange a meeting. X's mother was unable to attend the scheduled meeting.
The matter resurfaced when the Minister of Justice for the Northwest Territories requested an update. In response to an email from "G" Division Headquarters, dated August 22, 2007, sent to ascertain whether "there had been a complaint lodged in regards to Cst. Cockney's actions on that incident and if so what the status of that is," Corporal Strowbridge wrote:
I personally met with the complainant [X's mother] to interview her on the details of the incident. She stated that she did not wish to provide further details on this incident at that time. She stated that she would simply like to talk with Cst. COCKNEY to discuss the matter. I spoke with Staff [Sergeant] GRAY and Cst. COCKNEY and left the matter with them. The complainant appeared to want an informal resolution to the matter.
I spoke with Staff [Sergeant] GRAY on this yesterday afternoon. He indicated that Cst. Cockney was instructed to contact the complainant to make an appointment to meet with her. The complainant was to attend to the detachment for a meeting with [Constable] COCKNEY, facilitated by Staff [Sergeant] GRAY. Cst. COCKNEY advised that the complainant did not attend that appointment. Neither party has made contact since that time [emphasis added].
Later on August 22, "G" Division Headquarters requested that Corporal Strowbridge prepare a complaint form and that Staff Sergeant Milner review the complaint as the District Non-Commissioned Officer and with respect to any policy concerns relating to attendance at correctional facilities as a CEW instructor.
Corporal Strowbridge undertook to search for the original complaint form and to prepare another one if it could not be located.Footnote 49 Staff Sergeant Gray provided the following input, "... there was no formal complaint made ... when I spoke to the complainant she wanted the matter dealt with informally through a simple discussion with [Constable Cockney] as to why things happened the way they did ... no file, no paper work [emphasis added]."
On October 16, 2007, almost two months after the request, Corporal Strowbridge forwarded a newly prepared complaint form to the RCMP's Professional Standards Branch. The complaint classification section of that form identified the allegations as involving the improper use of force and irregularity in procedure. It recorded that the allegations were dealt with informally and resolved. Finally, it listed the allegations as being unsupported. These classifications are difficult to reconcile with the status of the file at the time. While it could be argued that an informal resolution was attempted, the RCMP failed to follow up with the requested meeting and failed to adequately document the file.
Similarly, the suggestion that the complaint was withdrawn is inconsistent with the documentation on file and the accounts of all parties, which on this point are consistent. The complaint was not withdrawn but rather not followed up by the RCMP. Lastly, the suggestion that the allegations were unsupported is inexplicable in that there was no investigative record and the RCMP had not yet ascertained the full scope or specifics of the complaint.
I conclude that the handling of X's mother's public complaint at the detachment level was deficient for a number of reasons. First, as the matter involved a complaint on the use of force, one of sufficient gravity to later necessitate a criminal investigation into a possible assault with a weapon charge, the matter was not suitable for an informal resolution. The file should have been immediately assessed to determine whether a criminal investigation was warranted. Additionally, although Corporal Strowbridge took steps to formalize the complaint, Staff Sergeant Gray seemed to be of the opinion that, if the matter was resolved informally, there would be no need to have any record of it. I hold a contrary view, as this type of resolution could lead to an under-reporting of issues and affect the ability of the Force and the Commission to identify conduct issues relating to specific members, detachments or divisions, thereby undermining one of the key purposes of an oversight or review mechanism. It could give rise to the perception that the RCMP was trying to avoid having sensitive issues independently and objectively reviewed, especially when, as in this case, the complaint form is lost and there is no written record of any kind.
This appears to be a systemic problem for which the Commission has already identified problematic trends within "G" Division in its Review of the RCMP's Public Complaint Records — 2007.Footnote 50
In accordance with RCMP policy AM XII.2- Public Complaints, a public complaint cannot be disposed of informally if:
- a complaint alleges serious misconduct; or
- a situation involves a subject member being arrested or a warrant to arrest being issued.
The term "serious misconduct" is not defined by the RCMP and does not match any of their 16 complaint allegation categories listed on Form 4110. This rather ambiguous and subjective term can lead to confusion and can result in public complaint allegations being miscategorized and inappropriately disposed of. This is especially true of "Improper Use of Force" allegations.
The Commission maintains that improper use of force allegations should, typically, not be informally resolved and that a formal complaint investigation should be initiated. Unfortunately, the Commission saw a number of improper use of force allegations that should have been classified as serious misconduct that were subsequently resolved informally.
During the analysis of the documents related to the Review of the Record, the Commission noticed that 8% of the total informal resolutions dealt with allegations of improper use of force and that 14% of all use of force allegations resulted in an informal resolution. Further broken down, just under half of all allegations (48%) of improper use of force complaints that were informally resolved were disposed of in a manner that the Commission deemed inappropriate. Improper resolutions for use of force allegations occurred most often in "G" and "V" Divisions.Footnote 51
These issues may require further review in a broader review of policing in the North.
Furthermore, this approach is contrary to the RCMP Act. Subsection 45.36 (3) states:
Where a complaint is disposed of informally, a record shall be made of the manner in which the complaint was disposed of, the complainant's agreement to the disposition shall be signified in writing by the complainant and the member or other person whose conduct is the subject-matter of the complaint shall be informed of the disposition.
The Act is clear as to the mandatory nature of the requirements to create the prescribed record, to obtain the complainant's written agreement and to notify the member named in the complaint of the outcome. None of this was done once Staff Sergeant Gray took carriage of the file and it is clear from his email response that even if the matter had been satisfactorily resolved on an informal basis, no such actions would have been taken.
The lack of proper file management likely contributed to the inattention the complaint received after Constable Cockney's and X's mother's failed attempt to meet. The evidence leads me to conclude that no further action would have been taken in response to the public complaint save for the intervention of the Minister of Justice. What is all the more surprising is Staff Sergeant Gray's reliance upon Constable Cockney, the subject member of the complaint, to arrange the anticipated informal resolution without facilitating or managing the file himself. This lack of oversight undoubtedly permitted X's mother's complaint to become lost in the system.
RCMP Response to X's Mother's Complaint at the District Level
Staff Sergeant Milner explained that because he was the same rank as Staff Sergeant Gray but junior in terms of service, Staff Sergeant Gray ran the Inuvik RCMP Detachment autonomously from district level oversight. That situation would have continued until about August of 2007 when Staff Sergeant Gray retired. Staff Sergeant Milner recalled that Corporal Strowbridge was the acting detachment commander from August of 2007 until February of 2008 when he was transferred to a new post.
Although Staff Sergeant Milner had been alerted to the incident as well as X's mother's complaint and had spoken to Constable Cockney at least twice in May of 2007, he did not take an active role in addressing the matter until he realized that the file was not moving along. This occurred after the August 22, 2007 email which indicated the Minister of Justice's desire to have an update on the file status. Staff Sergeant Milner's task was to review the complaint and to consider any policy considerations in relation to responding to the Facility. Staff Sergeant Milner's notebook entries in relation to this file began on December 7, 2007. His first report was completed on December 10, 2007.
Staff Sergeant Milner recalled speaking with Constable Cockney in September of 2007 and prior to that directing Staff Sergeant Gray and Corporal Strowbridge to address the matter. He also explained that from mid-August until early September he was on leave and that shortly after his return much of his time was devoted to dealing with the murder of Constable Chris Worden who was killed on October 6, 2007. His duties at that time included overseeing ten other detachments, handling other public complaints, and travel throughout the district.
On December 3, 2007, Staff Sergeant Milner received an email from Inspector Michael Payne, who was attached to the Northwest Territories' Department of Justice as Manager, Policing and Crime Prevention. The email directed Staff Sergeant Milner to look into the use of the CEW at the Inuvik RCMP Detachment. This alerted him to the fact that nothing had yet been done in relation to X's mother's complaint. At this point he commenced reviews of the incident/complaint and of the use of the CEW in the North District. He prepared a written report on December 10, 2007.
Delays of this nature undermine public confidence in the transparency and accountability of the police when investigating police. Some of the witnesses in this case commented upon the adverse effects of the passage of time on their memory. Staff Sergeant Milner readily acknowledged that the inaction on this file left a bad impression. However, this type of inaction can also lead to other investigative deficiencies. One example in this case was determining the number of times that the CEW was used, given that one of the witnesses recalled Constable Cockney using the CEW twice.
This issue was raised by Crown counsel in his review of the subsequent criminal investigation and, in particular, Staff Sergeant Milner's report: "The report does not address specifically the issue of whether the marks could be consistent with the device being used more than once and left on the same spot on the skin between cycles, as suggested by Beatrice Donovan [...]." The best evidence to resolve this issue would have been a download of data from the CEW report. However, Staff Sergeant Milner indicated that when he attempted to obtain the CEW to conduct a download, he determined that the unit was defective and had been sent to the Armourer in August of 2007 for replacement and was no longer available. I am satisfied from the preponderance of evidence that this was not the case and that Constable Cockney used the CEW only once. Nevertheless, I attribute the loss of the best evidence to the RCMP's delay in conducting an investigation.
Staff Sergeant Milner's December 10, 2007, Use of Force Report
In his December 3, 2007 email, Inspector Payne noted that Staff Sergeant Milner was having discussions regarding a use of the CEW in Inuvik.Footnote 52 He then provided a breakdown of CEW useFootnote 53 in the division and observed that Inuvik "stands out from the rest." He requested that Staff Sergeant Milner conduct a review of CEW use in Inuvik "to ensure it was used in accordance with policy." The data provided by Inspector Payne indicated that the Inuvik RCMP Detachment accounted for 46 percent of all reported CEW uses in the division, which included warnings as well as firings of the CEW. It also indicated that 37 percent of all reported firings or deployments of the CEW arose out of the Inuvik RCMP Detachment.Footnote 54
Staff Sergeant Milner's review was appended to his December 10, 2007 investigation report into the incident involving X.Footnote 55 He reviewed the reported CEW uses in the North DistrictFootnote 56 and determined that 27 of the 31 reports (87 percent) from that district arose from the Inuvik Detachment. He noted that 55 percent of the uses involved voluntary compliance where the members did not have to fire the CEW and reported: "From reviewing all usage reports as well as general reports it appears that the CEW was utilized correctly within the IM/IM."Footnote 57 The Commission has not as yet reviewed these individual cases. However, there are two issues before me that militate for a broader review of CEW use in the North. First is the fact that Staff Sergeant Milner, who endorsed Constable Cockney's use of the CEW as being appropriate, also is the individual who determined that the CEW use was correct in each of the 27 cases reviewed. Second is the fact that on the face of it there appears to be a disproportionate frequency of use of the CEW in "G" Division, based on the data compiled in the Commission's report on RCMP Use of the Conducted Energy Weapon (CEW): January 1, 2008 – December 31, 2008Footnote 58 relative to the size of the divisional RCMP contingent.
Notwithstanding that Staff Sergeant Milner attached a copy of Constable Cockney's original occurrence report, he cited certain details of the incident which are not evident from the written record available at that time.Footnote 59 Specifically, Staff Sergeant Milner reported that X "was pulling and kicking, trying to get up and away from the workers." He also reported that "Cst. COCKNEY indicates that when she arrived [X] was displaying resistant combative behavior by kicking and pushing. The staff did not have complete control of [X]."
Staff Sergeant Milner was questioned on this point and it came to light that he had relied upon the amended version of the occurrence report. He acknowledged that after reviewing the original version he directed Constable Cockney to add more detail. There was no written record of these discussions nor of the earlier discussions that Staff Sergeant Milner recalled having with her, in May and September of 2007. Staff Sergeant Milner explained the events in the following manner:
I said look, there's not enough information on this and, you know, from when... when this was modified, that would have been when I spoke to her. And you can... you'll be able to confirm that. But I said, you know, you've used the CEW. You didn't put very much in there. And I said, you've got to articulate what you did because she didn't at the very beginning. [...] and I spoke to her and spoke to her about what was... what she saw and what she did and what... and to articulate it. [...] And I remember talking to her now that you show me this, yes, [...] she was given direction to go in and put in exactly what she did. And that's... and I would have referred to this for my December report.
Later he was questioned about whether having these changes caused him any concern:
Q. [...] given that [Constable Cockney] had no notes, given that both of the original documents that she completed didn't have any of these indicators about behavior, did you have any concerns about the... accepting the documentation, accepting her version of events, which appears to have been added on some... you know, almost 9 months after the events, or eight months after the event.
A. Did I add to the report? No. If I speak to somebody and I tell them to clarify in the report, can you tell me what happened, I've got to take it at face value. I have no reason not to believe Noe Cockney that she went to the youth facility and [X] was... was acting in a combative resistant behaviour, and that's what Noe said. I didn't... I didn't direct her on what to put in the report. I directed her to put what... what... and to articulate it in a way that wasn't just two or three lines.
This explanation raises a number of concerns. First, it is difficult to understand what the purpose of this report was. It would appear to be an assessment of Constable Cockney's version of events and nothing more. One would think that the observations of X and the youth officers would have been of paramount concern before engaging in assessing the conduct. Not only did Staff Sergeant Milner prepare his report without any input from either of these sources but at no time did the RCMP seek to obtain a statement from X. Rather Staff Sergeant Milner indicated that he had to take Constable Cockney's statement at face value.
The issue of whether X was handcuffed or not should have been an important fact in his assessment. He was alerted to this information from X's mother's complaint, yet his treatment of this in his first report was simply to note that Constable Cockney could not recall if X was handcuffed.Footnote 60 He refers to X's mother's allegation one other time just before finding that X was not under complete control and that Constable Cockney "used the least injurious intervention to gain compliance." Preparing a report that endorses Constable Cockney's conduct with only her version of events to rely upon can only lead to the perception of bias.
Second, Staff Sergeant Milner should never have engaged in off-the-record conversations with Constable Cockney. Although he maintained that he was not trying to hide anything and only wished Constable Cockney to add in the detail which she had described to him, I cannot envision Staff Sergeant Milner treating any other witness with such deference. In fact, Constable Cockney was not merely a witness; she was the subject of a criminal investigation and it was all the more important to maintain professional, objective and impartial standards.
The list of questionable actions in relation to Staff Sergeant Milner's early involvement in the RCMP response to this incident includes:
- 1) Having multiple off-line discussions with Constable Cockney.
- 2) Failing to make any notes with respect to those communications.
- 3) Directing Constable Cockney to alter her occurrence report without making a note that it was being altered and for what reasons..Footnote 61
- 4) Making the determination that Constable Cockney's conduct was appropriate after only considering her amended version of events.
Staff Sergeant Milner may believe that he was only filling in the record but there is no way to assess whether his conversations with Constable Cockney influenced what she later put in her report. He certainly let her know that there was insufficient information to justify her use of the CEW. This creates a strong perception of bias which is only strengthened when one considers that but for the one copy of the occurrence report, a copy which was not relied upon and appears to have been inadvertently left in the file, there would have been no way of knowing that the original occurrence report had been amended.
Lastly, Staff Sergeant Milner stated that at the time that he wrote this report there was no question that the matter was to proceed as a criminal investigation. That would be all the more reason for Staff Sergeant Milner to avoid communicating with Constable Cockney in regards to the matter unless he was an investigator, which he maintains he was not. Any such communications should have been taken as formal statements after Constable Cockney had been advised or her rights.Footnote 62 and duly warned.
Attached to Staff Sergeant Milner's report was an appendix summarizing the RCMP calls to the Facility to deal with X. He cited this summary as well as the fact that X was later transferred from the Facility to set out the circumstances confronting Constable Cockney. The weight to be given to these issues is questionable, especially given that there was no evidence to establish that Constable Cockney was aware of any of the prior incidents. Although Constable Cockney stated that she knew X and one may assume, as Staff Sergeant Milner did, that she had knowledge of the events described, Staff Sergeant Milner acknowledged that he did not know if she was aware of any of these details and he did not follow up. This speculation allowed Staff Sergeant Milner to insert his opinion without linking it in any way to Constable Cockney's subjective appreciation of events. This approach demonstrates a lack of impartiality on the part of the RCMP. Staff Sergeant Milner needed to determine what Constable Cockney actually knew and not engage in speculation and assumption.
His use of this information in assessing the appropriateness of Constable Cockney attending the Facility with all of her intervention equipment is more puzzling. Staff Sergeant Milner begins his analysis of this issue by suggesting that if Constable Cockney had not responded with all of her intervention equipment she could not have used her CEW. He concluded:
[... X] had assaulted staff on two occasions requiring police attendance. On two occasions [X] had to be returned to RCMP cells as she could not be adequately monitored by Arctic Tern Staff. Twice [X] had acquired weapons and was in the process of harming herself. With all this being taken into account and risk assessing as part of the IMIM it was very prudent by all members to enter Arctic Tern with all of their Intervention Equipment.
The issue raised by X's mother in her letter to the Facility Manager which was copied to the RCMP was why Constable Cockney carried her firearm into the Facility. It is not clear how X's past or future behaviour, none of which demonstrated that she posed a risk of grievous bodily harm or death, played a role in Staff Sergeant Milner's far-reaching conclusion that "all members" should carry "all of their intervention equipment."
The commencement of the criminal investigation is not clear from the record. Staff Sergeant Milner stated that because the complaint was a use of force issue it was always to be treated as a criminal investigation.
Once we know that there was a use-of-force issue you had to do the stat [criminal investigation] and the public complaint sits in abeyance.Footnote 63 waiting for the stat to be done and then you can use the stuff from the stat... the stat to make a decision on the public complaint. And it was... Jim Strowbridge was told, right from the get go, you've got to investigate this as a stat.
The dates of any such discussions could not be ascertained, as neither Staff Sergeant Milner nor Corporal Strowbridge made any notes.
The Commission appreciates that in many instances in which a member is being investigated for suspicion of a criminal offence the criminal investigation may take precedence. Staff Sergeant Milner indicated that once he opened the Special Project file, on December 11, 2007, the criminal investigation was underway. However, there are portions of the record that lead me to believe otherwise.
The relevant material contained an email written by Staff Sergeant Milner on December 11, 2007, indicating that he had a scheduled meeting with X's mother for later that day and that he anticipated that the matter "will be resolved then." He also noted that, if the matter were not completed as anticipated, Corporal Strowbridge would be tasked with completing it. Prior to the meeting taking place, X's mother cancelled it and stated that she did so at the direction of her counsel. On December 13, 2007, Corporal Strowbridge was tasked with completing the investigation into the matter.
The fact that the criminal investigation was to proceed only in the event that Staff Sergeant Milner was unsuccessful in satisfying X's mother's concerns, leads me to conclude that Staff Sergeant Milner intended to resolve X's mother's issues by meeting.Footnote 64 with her and the matter could then be concluded. This may have seemed to be a reasonable course of conduct to him given that he had already completed his first review of the use of force and had formed the opinion that Constable Cockney had acted appropriately. This would also explain the summarily prepared December 10, 2007 use of force review, which would have served as the framework for his discussion with X's mother and had little other value given that it was merely a recitation of Constable Cockney's revised accounting of events. I therefore find that Staff Sergeant Milner attempted to dispose of X's mother's complaint informally and that contrary to his assertion that the criminal investigation was going ahead regardless of his success with the complaint, that the matter would have been put to rest. As was discussed in relation to the detachment's handling of this matter, this avenue was not appropriate.
On opening the Special Project file Staff Sergeant Milner identified himself as the lead investigator and the copy of his occurrence report was captioned as a criminal investigation. He later added Corporal Strowbridge in the capacity as the lead investigator and explained that he had only put himself in that role when he opened the file because the system required that someone be listed in that capacity and that he should have marked himself as an assisting officer in his role as District Advisory Non-Commissioned Officer.
The only indication of Corporal Strowbridge's involvement with the investigation was an occurrence report dated February 21, 2008, in which he reported meeting with Constable Cockney and asking her to provide a voluntary warned statement in relation to the criminal investigation. Constable Cockney declined to give a statement as was her right.
The Commission investigator interviewed Constable Kevin Charles, the RCMP investigator assigned to the criminal investigation. The summary of that interview noted the following:
- Staff Sergeant Milner assigned the investigation to him in early February 2008.
- He was directed to interview all involved Facility staff members, Corporal Strowbridge was to interview Constable Cockney, and Staff Sergeant Milner would meet with X's mother..Footnote 65
- He was to forward all interviews to Staff Sergeant Milner.
Constable Charles completed his investigation report on February 26, 2008. In addition to the statements of Facility staff members and various internal RCMP emails, Constable Charles had the benefit of a subject-matter expert report on the CEW use prepared by Staff Sergeant Milner,.Footnote 66 as well as Staff Sergeant Milner's December 10, 2007 investigation report in the form of a paper review.
It is important in any investigation that facts be recorded and conclusions arrived at in an objective and transparent manner. A review of Constable Charles' investigation report revealed some deficiencies in this area. In portraying X's behaviour around the time that Constable Cockney arrived, his description of events described X struggling, kicking her legs and trying to roll over in the investigation report and the prosecutor's information sheet. Yet he failed to note the directly contradictory position outlined in Ms. Hope's statement. Furthermore, there is no record that he reviewed the incident reports prepared by Facility staff.
Constable Charles did not make notebook entries as his investigation progressed. However, his investigation report included an occurrence report which outlined his investigative activities along with relevant dates and times. Among his actions were a number of discussions with Staff Sergeant Milner. Unfortunately, there are no details of these meetings to aid in clarifying the respective roles of the members.
Staff Sergeant Milner prepared a second use of force report on February 28, 2008. This report was largely a copy of the first report with the addition of portions of witness statements not contradictory to Constable Cockney's revised occurrence report. The conclusions drawn in this report can be challenged on a number of grounds. First, by relying so heavily on the first report, Staff sergeant Milner gives the impression that in preparing the second report, he was only enhancing the record in support of his original opinion. As discussed earlier, that pre-determination of the issue was not safe. He reached his initial conclusion based on one version of the facts, a version that he directed Constable Cockney to alter. Second, by engaging in selectively reporting only the evidence which supported the ultimate conclusion, a strong perception of bias is raised.
I note, however, that Crown counsel did not merely rely upon the investigation report but read the witness statements and was alert to the contradictory evidence.
Crown Counsel Review
On May 15, 2008, an internal RCMP email announced the results of the Crown counsel's opinion which was concluded four days earlier. The email read: "The Crown finding is that Cst. Cockney acted appropriately and her actions were not criminal [emphasis added]." This statement shows a misapprehension as to the purpose of the Crown counsel review.
Crown counsel was assigned the file to assess the merits of a "possible charge of assault with weapon [...]" and determined that there was no reasonable prospect of conviction. The conclusion reached was neither that Constable Cockney acted appropriately nor that her actions were legally justified. Crown counsel determined that charges should not be laid because he did not believe that there was a reasonable expectation of conviction. He reached this conclusion after assessing the evidence of Facility staff and determining that the statements of the various witnesses painted different pictures as to whether or not X was under control and resisting. As he found no means to prefer one set of recollections over another, he concluded that this would likely raise a reasonable doubt, the standard of proof required in criminal cases.
It should also be noted that Constable Cockney chose not to provide a statement as was her right. However, Crown counsel did receive the revised copy of her occurrence report.
The mischaracterization of the findings of the Crown review is noteworthy because it mimics the bias demonstrated during the RCMP investigation of the matter.
The RCMP response to X's mother's complaint at the Final Level
The Commissioner's Final Report.Footnote 67 responding to X's mother's complaint was signed by Staff Sergeant Milner and contained neither an apology nor an explanation for the delay in responding. Indeed, the report was somewhat misleading as to the timeline of the investigative efforts. After referring to X's mother's letter of April 5, 2007, and her meeting with Corporal Strowbridge on April 24, 2007, Staff Sergeant Milner wrote: "Given that there was an allegation in your letter, of assault on your daughter, a decision was made to investigate your concerns as a Statutory [criminal] Investigation." This statement would likely lead a reasonable person to believe that the RCMP was active on the file from the outset.
However, the documentation and above timeline make it clear that nothing was being done on the file up to August of 2007 when the Minister of Justice intervened. Months later, the efforts appear to have focused on a paper review aimed at addressing the issues raised in X's mother's complaint. When informal resolution efforts were clearly not going to succeed the investigation commenced in earnest sometime after mid-December 2007. What is clear is that Constable Charles commenced his investigation in February 2008 and by mid-May 2008 the RCMP was aware that no charges would be laid. The RCMP's position was that the complaint could not be dealt with until the criminal case was resolved. Yet it was not until the matter resurfaced after the initiation of this complaint and public interest investigation by the Commission, more than seven months after receiving Crown counsel's opinion, that the RCMP was prompted into issuing its Final Notice. Delays on this scale can only serve to undermine public confidence in the complaint process and the RCMP's commitment to accountability.
Additionally, the substance of the letter failed to respond adequately to the alleged excessive use of force. Staff Sergeant Milner summarized Constable Cockney's version of events in his letter and merely advised X's mother that Crown counsel recommended that no charges be laid against Constable Cockney. There was no analysis presented. The fact that Crown counsel did not believe that there was a reasonable prospect of conviction on the criminal standard is not the test Constable Cockney's conduct was subjected to in a public complaint. In public complaints the standard of proof is lower, proof on the balance of probabilities versus proof beyond a reasonable doubt in criminal cases. Furthermore, criminal conduct is defined by a code and such alleged conduct must be proven to be in contravention of that code. Public complaint issues are much broader in scope and may encompass legislation, regulation, policy, practice and common sense. Staff Sergeant Milner's role was to assess Constable Cockney's conduct against that standard and he failed to do so.
The manner in which the RCMP handled this matter was at best negligent and at worst biased.
Conflict of Interest
There is an additional issue which arises when the evidence is reviewed in its entirety. Staff Sergeant Milner's involvement in this file put him in a perceived conflict of interest by virtue of his multiple roles.
- He was Constable Cockney's CEW instructor and his assessment of her conduct necessitated an indirect assessment of the very training that he had provided to her.
- He was ultimately tasked with conducting a review of Constable Cockney's conduct in response to X's mother's complaint. After conducting a paper review of the incident and apparently having no concerns about Constable Cockney's conduct he attempted to arrive at an informal resolution with X's mother. When this failed, he ultimately was the decision-maker on the complaint and signed off on the Commissioner's Final Report.
- He initiated the eventual criminal investigation of the incident, assigned investigative tasks and provided a subject-matter expert review of the investigation report which was largely the same as the paper review in response to X's mother's complaint.
- His expertise was such that he was called upon to complete a review of CEW use in the Inuvik Detachment once issues arose as to the high number of reported uses in that location.
Staff Sergeant Milner was questioned as to the varied responsibilities he had while stationed in the Northwest Territories. He identified significant duties, which not only affected the timeliness with which he could respond to matters under his domain, but also appear to have created an acceptance of fulfilling duties that should have been kept separate and apart. He explained that with staffing issues as they were he either had to address matters himself or it would not have gotten done. This speaks to a broader problem with policing in the North that may necessitate further review.
The RCMP's response to this particular case exemplifies many of the concerns raised by the Commission in its report on the Police Investigating Police ("PIP").Footnote 68 but also raises concerns in other areas. Five criteria were used to assess the investigations:
Conduct — This is one area that diverges from the findings of the PIP report. In that case the Commission found the conduct of all investigators to be highly professional and appropriate. The findings made above do not support the same assessment in this case. The failure to record investigative activities; the acceptance of an amended version of events from Constable Cockney and failure to identify that fact; and the selectivity in assessing the evidence were not appropriate.
Policy Compliance — While the PIP report identified only a few minor policy violations in the 28 cases reviewed, in this case there was a clear failure to follow the RCMP policy or Commissioner's Standing Orders governing the conduct of internal investigations..Footnote 69 Furthermore, as noted below, there was an almost universal non-compliance with the note-taking policy by members tasked with aiding in the review or investigation of this incident.
Timeliness — While the vast majority of the cases reviewed in the PIP report were handled in a timely fashion, this case languished from start to finish. In fact, it appears that at all points where effort was expended on addressing the matter there was an external prompt that would re-ignite the otherwise dormant file.
Line Management — The PIP report found that the majority of cases reviewed suffered from reporting management structure and that was no different in this case and is highlighted by the conflicts of interest that arose during the RCMP response.
Level of Response — Again the PIP report identified that in a majority of the cases reviewed the qualifications of the members conducting the investigations were not reflective of the gravity of the matters being investigated. That was not an issue in this instance in that the members involved had experience, which should have been sufficient to respond adequately.
The RCMP's performance on this file raises concerns at almost every level and above and beyond what might have been expected when viewing the performance in the investigations considered in the PIP report. There are two readily identifiable factors that may have played a role in this. First, there is the possibility that the practical realities of policing in the North and in particular the staffing levels.Footnote 70 played a role in the deficiencies identified by this report. Secondly, it is also possible that because the conduct giving rise to this complaint was not of the serious nature of the cases reviewed in the PIP report and did not capture the same level of public interest and scrutiny, the RCMP's response fell into a different tier in which mismanagement and poor decision-making prevailed.
This review has considered the written record in relation to five members from "G" Division: Constable Cockney, Staff Sergeant Gray, Constable Charles, Corporal Strowbridge and Staff Sergeant Milner. No notebook entries were provided for any of these members except for Staff Sergeant Milner, the adequacy of whose notes was reviewed earlier in this report. Constable Cockney provided some cursory description of her actions in her CEW usage report and occurrence report. However, only in the case of Constable Charles was there a substantive record of his actions on the file in the form of his occurrence report. Unfortunately, these typed reports do not confer the same benefits as a properly maintained notebook.Footnote 71 This raises concerns about "G" Division compliance with notebook policy.
In the normal course, when reviewing incidents involving the use of the CEW, there are certain standard documents that are sought to aid in the investigation. These include the CEW usage report, the CEW download report and the control log, which is particularly helpful in identifying who was using a CEW or which CEW a member was using. In this case, the Commission's enquiries uncovered the fact that no control logs were kept at the Inuvik RCMP Detachment during that time period.Footnote 72 The RCMP's response noted that "G" Division did not have specific policy requiring a control log to be kept. However, RCMP national policy required that the commander is responsible "for maintaining a control log for each CEW assigned to the unit by recording the time, date and name of each member who signs out a CEW."Footnote 73
Divisional policy is subordinate to national policy and cannot abrogate the latter. The fact that the lack of divisional policy was cited as an explanation for non-compliance raises two concerns. First, it may well be that the failure to maintain supervisory controls over CEW use may be more widespread than one detachment. Second, it gives the impression that the division felt enabled to regulate its members pursuant to its own methods, effectively disregarding national direction.
In November 2007, I initiated a complaint and public interest investigation into the issue of the police investigating the police.Footnote 74 That complaint focuses on the conduct of those unidentified RCMP members who have conducted criminal investigations into the activities of other RCMP members, in cases that involved serious injury or death, which have taken place anywhere in Canada between April 1, 2002 and March 31, 2007. The associated investigation has provided a comprehensive review of this issue and my Final Public Report on that file addresses the above-noted issue in a far more encompassing manner than what was intended for in this report. Accordingly, save for the issues raised in the preceding section, I refer the reader to the aforementioned Final Public Report.
Having considered the complaint, I hereby submit my Public Interest Investigation Report in accordance with subsection 45.43(3) of the RCMP Act.
Paul E. Kennedy
Appendix A – Timeline
|03/13/07||Constable Cockney attends the Facility and uses the CEW on X.|
|03/30/07||Staff Sergeant Milner advised that he is to meet with the Director of Corrections to explain the incident.|
|04/05/07||X's mother sends a letter to the Facility and the RCMP complaining about her daughter's treatment.|
|04/23/07||Corporal Strowbridge meets with X's mother who refuses to sign the complaint form and expresses a desire to speak with Constable Cockney.|
|04/--/07||Staff Sergeant Gray directs Constable Cockney to arrange a meeting with X's mother but the meeting never takes place.|
|05/--/07||Staff Sergeant Milner speaks to Constable Cockney about the incident.|
|08/22/07||"G" Division Headquarters requests that Corporal Strowbridge locate the missing complaint and if unsuccessful prepare a new complaint form. Headquarters also requests that Staff Sergeant Milner review the incident.|
|09/--/07||Staff Sergeant Milner speaks to Constable Cockney about the incident.|
|10/16/07||Corporal Strowbridge submits a second complaint form to Professional Standards and copies Staff Sergeant Milner.|
|12/03/07||Staff Sergeant Milner is tasked with conducting a review of CEW use in Inuvik.|
|12/06/07||Corporal Strowbridge resends his October 16, 2007 email with the attached second complaint form to Staff Sergeant Milner.|
|12/07/07||Staff Sergeant Milner prints a copy of Constable Cockney's original occurrence report.|
|12/--/07||Staff Sergeant Milner speaks with Constable Cockney and directs her to add more detail to her occurrence report.|
|12/10/07||Staff Sergeant Milner completes his first report on the incident and finds that Constable Cockney acted appropriately. He also completes a report on CEW use in the North District.|
|02/06/08||Constable Charles is tasked with investigating the incident.|
|02/26/08||Constable Charles completes his investigative report.|
|02/28/08||Staff Sergeant Milner completes his use of force report.|
|05/14/08||Crown counsel's opinion is received and placed into an electronic file by Staff Sergeant Milner.|
|11/28/08||The Chair of the Commission initiates a complaint into the use of the CEW and the RCMP investigation.|
|12/02/08||Staff Sergeant Milner sends a letter to X's mother in response to her April 5, 2007 complaint.|
Appendix B – Chair-Initiated Complaint
Chair-Initiated Public Complaint and Public Interest Investigation, Subduing of Teenage Female, Inuvik, NWT
Appendix C – Summary of Findings and Recommendations
First Issue: Whether the RCMP members involved in the events that took place in March 2007 in Inuvik, Northwest Territories, where a teenage girl was allegedly subdued with the use of a conducted energy weapon, complied with all appropriate policies, procedures, guidelines and statutory requirements.
Finding No. 1: Constable Cockney was not qualified to deploy a CEW and her use of the CEW in the case under review breached RCMP policy.
Recommendation No. 1: The National Use of Force Coordinator should review the use of the CEW within "G" Division for compliance with policy which restricts use of the CEW to certified members, and provide the Commission and the Minister with a report thereon.
Recommendation No. 2: The RCMP should take all reasonable steps to restrict access to the CEW except to qualified trainers and users as well as trainees under supervision.
Finding No. 2: Constable Cockney failed to make adequate notebook entries as required by RCMP policy.
Finding No. 3: Constable Cockney failed to provide sufficient detail in the occurrence or CEW usage reports to justify her use of force.
Finding No. 4: The electronic versions of the occurrence report and the CEW usage report available at the time of the incident failed to identify when the documents were created or amended or by whom.
Recommendation No. 3: The RCMP should provide Constable Cockney with operational guidance in the requirements for proper note-taking and proper reporting techniques.
Recommendation No. 4: For a period of six months, or such longer period as may be necessary to ensure compliance, the RCMP should monitor Constable Cockney's performance in relation to the preparation of written records and notes.
Recommendation No. 5: The RCMP should ensure that all forms, whether completed by hand or electronically, contain the dates and times of creation and amendment as well as by whom these actions were taken.
Finding No. 5: Constable Cockney failed to adequately conduct a risk assessment after arriving on the scene.
Finding No. 6: Constable Cockney failed to adequately consider other available options prior to deploying the CEW.
Finding No. 7: Constable Cockney deployed the CEW against X when it was unnecessary to do so.
Second Issue: Whether existing policies, procedures and guidelines were adequate.
Finding No. 8: The Inuvik RCMP Detachment failed to have an operational plan in place for responding to calls for service at the Facility.
Recommendation No. 6: The Inuvik RCMP Detachment should consult with the Facility and work toward creating an operational plan for responding to calls at the Facility.
Recommendation No. 7: The RCMP should create policy, procedures or guidelines to ensure that operational plans are in place with respect to custodial facilities routinely serviced by the Force.
Third Issue: Whether members involved in the investigation of the incident conducted the investigation free from any real or perceived bias and in a timely and adequate manner.
Finding No. 9: The Inuvik RCMP Detachment improperly attempted to informally dispose of X's mother's public complaint.
Finding No. 10: The Inuvik RCMP Detachment failed to adhere to the statutory requirements to maintain a record of X's mother's public complaint.
Finding No. 11: The Inuvik RCMP Detachment failed to oversee the RCMP response to X's mother's public complaint resulting in significant and unnecessary delay.
Recommendation No. 8: The RCMP should conduct a review of the handling of public complaints in the Inuvik RCMP Detachment, which should include steps to identify cases which have not been properly recorded as such or have otherwise not been handled appropriately.
Recommendation No. 9: The RCMP should establish national training for detachment commanders, unit commanders and other members administrating the public complaint process.
Finding No. 12: Staff Sergeant Milner failed to act upon X's mother's public complaint in a timely fashion.
Finding No. 13: The delays in the conduct of the RCMP investigation resulted in the destruction of potential evidence.
Finding No. 14: Staff Sergeant Milner engaged in speculation and relied upon irrelevant considerations in reaching the conclusions in his report.
Finding No. 15: Staff Sergeant Milner's December 10, 2007 report was biased in favour of Constable Cockney.
Finding No. 16: Staff Sergeant Milner improperly attempted to informally dispose of X's mother's public complaint and thereby forestall the criminal investigation.
Finding No. 17: Constable Charles' investigation report selectively reported evidence leading to the perception of bias.
Finding No. 18: Staff Sergeant Milner's use of force report selectively reported evidence leading to the perception of bias.
Finding No. 19: The RCMP's response to X's mother's complaint was unreasonably delayed.
Finding No. 20: Staff Sergeant Milner failed to adequately address X's mother's complaint.
Finding No. 21: The RCMP's handling of X's mother's complaint was deficient in its management, timeliness and the adequacy of the investigation, such that it leads to a strong perception of bias.
Finding No. 22: Staff Sergeant Milner was in a conflict of interest when assessing Constable Cockney's conduct.
Recommendation No. 10: The RCMP should create clear policy and/or investigative guidelines to prevent conflicts of interest from arising during internal investigations.
Finding No. 23: Constable Cockney, Constable Charles, Corporal Strowbridge and Staff Sergeant Milner failed to maintain adequate notebooks.
Recommendation No. 11: The RCMP should conduct an audit of "G" Division to assess compliance with the RCMP policy provisions relating to the maintenance of notebooks during the period from April 1, 2007 to March 31, 2009 and report the results of that audit to the Commission.
Recommendation No. 12: The RCMP should provide Constable Cockney, Constable Charles, Corporal Strowbridge and Staff Sergeant Milner with operational guidance on the importance and proper maintenance of members' notebooks.
Recommendation No. 13: The RCMP should provide all members of the Inuvik RCMP Detachment with refresher training on the importance and proper maintenance of members' notebooks.
Finding No. 24: In breach of RCMP national policy, the Inuvik RCMP Detachment failed to maintain CEW control logs.
Recommendation No. 14: The National Use of Force Coordinator should conduct an audit of all "G" Division detachments to assess compliance with the maintenance of CEW control logs during the period from April 1, 2007 to March 31, 2009 and report the results of that audit to the Commission and the Divisional Use of Force Coordinator.
Appendix D – Incident Management Intervention Model
17.1. Incident Management Intervention Model
(For information regarding this policy, contact National Contract Policing Br., Community, Contract and Aboriginal Policing Services Dir. at GroupWise address OPS POLICY HQ)
- 1. 1. The main objective of any occurrence response and intervention is the safety of members, other law-enforcement officers and the public. Many occurrences can be resolved through dialogue, but occasionally, intervention by means of force may be necessary.
- 1. 2. Section 25 (1), CC, allows a police officer (member) to use as much force as deemed necessary for the enforcement and administration of the law. The onus is on the member to show that, under the circumstance, the degree of force used was justified and not excessive.
- 1. 3. Deadly force is used in exigent circumstances only. It is a last resort in preventing death or grievous bodily harm to police officers and the public, or in preventing the escape of a suspect of a serious crime — if the escape cannot be prevented by less-lethal means.
- 1. 4. The Incident Management Intervention Model (IM/IM) is an operational training aid for RMs. When responding to an occurrence, a member applies IM/IM techniques to assess situational risks and behavior of suspects, and respond with the appropriate level of intervention (use of force) to control a situation.
- 1. 5. The IM/IM is available on the InfoWeb, Training and Learning – Investigator's Toolbox: Public and Police Safety, Tools, Risk Assessment.
2. Intervention Principles
- 2. 1. The IM/IM is comprised of seven underlying intervention principles:
- 2. 1. 1. The primary objective of any intervention is public safety.
- 2. 1. 2. Police officer safety is essential to public safety.
- 2. 1. 3. The IM/IM must always be applied in the context of careful risk assessment.
- 2. 1. 4. Risk assessment must take into account the likelihood and extent of loss of life, injury and damage to property.
- 2. 1. 5. Risk assessment is a continuous process and risk management must evolve as situations change.
- 2. 1. 6. The best strategy is the least intervention necessary to manage risk.
- 2. 1. 7. The best intervention causes the least harm or damage.
- 2. 2. All members must be fully aware of the IM/IM and its underlying principles.
- 3. 1. The IM/IM will be taught to RCMP cadets at "Depot" Division and to all RMs through the Public and Police Safety Course.
- Part 18, Arrest
Appendix E – Graphical Model of the IM/IM
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