RCMP Training Postponed Amid Racial Profiling and Abuse Findings

On January 27, the RCMP scrapped a program to send hundreds of police officers to Arizona for drug recognition training after learning that a recent U.S. Department of Justice Report found “reasonable cause to believe” that the Maricopa County Sheriff’s Office had engaged in a practice of misconduct that violated the U.S. Constitution and Civil Rights Act, 1964. The Report, at page 2, also indicates that the violations are to such an extent that the DOJ is prepared to commence civil proceedings against the Sheriff’s Office if it does not comply with a federal judicial process to reform the detachment’s practices immediately.

The DOJ found cause to believe that violations occurred in the following areas: 1. Discriminatory practices including unlawful stops, detentions and arrests of Latinos; 2. Unlawful retaliation against individuals exercising their First Amendment right to criticize MCSO’s policies or practices, including but not limited to practices relating to its discriminatory treatment of Latinos; and 3. Discriminatory jail practices against Latino inmates with limited English proficiency by punishing them and denying them critical services.  

The Justice Department found a number of long-standing and entrenched systemic deficiencies that caused or contributed to these patterns of unlawful conduct, including:  1. Failure to implement policies guiding deputies on lawful policing practices; 2. Allowing specialized units to engage in unconstitutional practices; 3. Inadequate training and supervision; 4. An ineffective disciplinary, oversight and accountability system; and 5. A lack of sufficient external oversight and accountability.   

In addition to these formal pattern or practice findings, the investigation uncovered additional areas of serious concern, including:  1. Use of excessive force; 2. Police practices that have the effect of significantly compromising MCSO’s ability to adequately protect Latino residents; and 3. Failure to adequately investigate allegations of sexual assaults.  

The Report is drawing concern in Canada because the Maricopa County police detachment has partnered with the RCMP for years, with Maricopa officers instructing in Canada and RCMP officers doing “field certification” at the county’s jail. That field work has included having RCMP officers, from both municipal and provincial forces, practice drug recognition training on individuals arrested for allegedly driving while impaired. Although Deputy Commissioner Doug Lang cancelled the partnership with Maricopa within days of being alerted to the Report by the British Columbia Civil Liberties Association, noting that it brings “into question” certain police practices in Maricopa County.

But some are speculating that the implications span wider than Maricopa County and may impact criminal investigations and cases that are already before Canadian courts, as the Maricopa Sheriff’s Office is said to be responsible for training upwards of 85 percent of all drug-recognition experts in North America. As a result, B.C. Civil Liberties Association Executive Director David Eby has called on the RCMP to conduct a retroactive review to determine if the training RCMP officers have received over the years is reliable and complies with Canadian societal norms and constitutional standards.

According to the Montreal Gazette, RCMP Inspector Allan Lucier responded by saying that although the drug recognition materials the RCMP uses were developed in the United States, they have been modified to ensure they conform to Canadian laws.

Mericopa County Sheriff Joe Arpaio has called the investigation and attempted reforms politically orchestrated and an “invitation to illegals”. Arpaio is also currently under fire for his office’s failure to properly investigate more than 400 sex crimes, which has also prompted calls for his resignation. The Justice Department has given Arpaio 60 days to reach a court enforceable agreement to reform policing practices and systemic deficiencies at the Mericopa detachment.

Posted by Jeremy Tatum (Windsor Law III)

Police Too Quick To Taser?

On April 7, 2011, an eleven year-old boy was tasered by Prince George (BC) RCMP following his suspected involvement in the stabbing of a 37 year-old man at a group home. Immediately following the incident, little was known or released about what prompted the police to taser the boy. Six months later, it was discovered that the boy in fact suffered from a heart condition, bipolar disorder and hearing impairment. During the incident, the RCMP was negotiating with the boy to come out. The boy appeared in a second-story window with what appeared to be a knife. He ran the object along his sweatshirt, arms and hands. The RCMP then witnessed the boy make cross-like gestures, which stood as a last straw for the RCMP before they decided to taser him when he came out. The boy negotiated for some clothes and when he came out, he was tasered. It was later seen that the boy did not have a knife in his hands, but rather, a pen. 

At first glance, it seems that the RCMP were out-negotiated by an 11 year-old boy who faced mental health problems. Rather than calmly or alternatively trying to negotiate with the boy, or perhaps find out more about his situation, the RCMP resorted quickly to using a taser. It is understandable that the RCMP were trying to protect the boy from himself and from themselves. However, by using a taser so quickly, they failed to consider the potentially fatal side effects, in particular on the boy’s heart condition. The RCMP also failed to verify whether the boy in fact was holding a weapon at all before deciding to taser him.  It begs the question of whether this 11 year-old boy really posed a threat to the RCMP at all.

Given the boy’s mental health condition, of notable interest would be to look into whether the RCMP has been provided with adequate training in handling situations of this nature. It is possible that the RCMP misinterpreted the boy’s signals or the boy was unable to comprehend the RCMP officers’ demands. Would this then be sufficient grounds for the RCMP officers to resort to tasering the 11 year-old boy? It is tough to see in any situation involving an 11 year-old why the RCMP would resort to tasering. It is even more compelling in this situation where the boy faced several mental health disorders.

An investigation was launched into the conduct of the Prince George RCMP officers involved. In charge of the investigation was the West Vancouver Police Department (WVPD), headed by Chief Constable Peter Lepine, a former RCMP officer. Of particular concern here is who is acting as a check on the power of the RCMP? From what it seems, the WVPD is not an entirely independent unit, and thus cannot really provide an “objective” inquiry into the RCMP. The issue of tasering is already contentious – can the RCMP be held truly accountable for their actions if investigated by the WVPD?

In the end, it was declared by the WVPD that the conduct of the Prince George RCMP did not violate the Criminal Code. However, few details of how this decision was made were given. Consequently, how can we as the public be satisfied with the results of this investigation? Although the initial story caused mass public discourse and debate, the results of the inquiry into the RCMP has seemed to go undetected. The detailed considerations that went into the WVPD investigation were not made transparent to the public. The length of time between when the incident occurred, and when more details were provided (6 months later) seems entirely unreasonable and did not allow for the public to remain informed.    

It is also important to note that separate investigations by independent groups were also launched, including that of the Commission for Public Complaints Against the RCMP, and one by well-known BC Representative for Child and Youth, Mary Turpel-Lafond working alongside the BC Ministry of Child and Family Development. Results of these investigations have yet to be released but perhaps when they are, they will shed a more objective light on the situation.

Posted by Audrey Wong (Windsor Law)

Deputy Commissioner wants RCMP disclosure obligations relaxed

According to newspaper reports, the RCMP is calling on the Harper government to relax the disclosure obligations of police officers in Canada. Senior Deputy Commissioner, Rod Knecht, intimates that the additional time police officers spend preparing disclosure comes at a cost to public safety. He would prefer that disclosure resources were instead spent on front-line policing.

This call for action is troubling. Several judicial inquiries have confirmed that non or insufficient disclosure of evidence contributed to wrongful convictions in Canada. In 2007, the Ontario Court of Appeal overturned the conviction of Steven Truscott. In 1959, Truscott was sentenced to death as a 14-year-old. He spent more than ten years in jail and lived his life stigmatized as the killer of Lynne Harper. The Ontario Court of Appeal found that a miscarriage of justice had occurred as a result of unreliable science, inadequate disclosure, faulty police investigating techniques and an unlikely theory of murder. Of note, a substantial amount of the fresh evidence heard at the Truscott appeal included information known to the Crown at the time of the original trial that was not disclosed to the defence. The Lamer Inquiry into the wrongful convictions of Ronald Dalton, Gregory Parsons and Randy Druken also chronicled flawed police investigations and disclosure.

While the volume of disclosure and the length of an average criminal trial has undoubtedly grown since the Supreme Court of Canada decision in R v. Stinchcombe, [1991] 3 S.C.R. 326, the Supreme Court has consistently held that persons charged with an offence have a constitutional right to disclosure of all information in the Crown’s possession or control, subject to proof from the Crown that the information is clearly irrelevant, privileged and in the public interest to withhold.

As Justice Sopinka, for the Court, recognized in Stinchcombe at 339-345, there will be cases where disclosure is more straightforward, as well as highly complex cases involving serious allegations and grave consequences to individual liberty that involve more lengthy and complex disclosure. The Court emphasized that the key to proper disclosure being made is whether an accused can make full answer and defence at trial. What exactly this means will vary to some extent from province to province and within a province by reason of local conditions, practices and the nature of the charge.

The need for accurate information and comprehensive disclosure has also been evidenced in matters of “national security”. Justice Dennis O’Connor’s Inquiry into the Actions of Canadian Officials in Relation to Mahrer Arar contains multiple references to the lack of transparency surrounding policing and national security activities. After finding that the RCMP passed inaccurate and unfair information to the United States that likely led to Maher Arar’s arrest and torture, Justice O’Connor included in his list of recommendations, amongst other things, that what is needed to ensure accountability of law enforcement is, subject to certain conditions, disclosure of information forming the basis of the charge, scrutiny by the courts and/or an independent review body. Bill C-38, which was created to alleviate some of the problems highlighted in the O’Connor Report and transparency in policing, has already drawn criticism about not going far enough to ensure access to information.

Consequently, if the police or CSIS are derelict in their responsibility to comprehensively record details of their investigation, there is the possibility that charges may be stayed under the Charter. There is also an increased likelihood of miscarriages of justice. Even if the non-disclosure does not rise to this level, it will likely lead to multiple adjournments to generate, for example, will say statements and other disclosure that was not prepared in the first instance. All of this comes at a cost to the taxpayer and even more the justice system.

It is for this reason that any non-disclosure legislation or practice grounded in administrative convenience would not survive a constitutional challenge where less restrictive alternatives are available and the right is a crucial component of a fair trial.

Whether the government ultimately chooses to “ease” disclosure obligations by hiring additional police officers in, for example, the isolated communities Knecht says are being “paralyzed” by disclosure obligations or improve the equipment and method available to officers in preparing records of their investigations are policy avenues that the government can consider. In the wake of recent debates and different community standards about the criminality of prostitution, use and possession of marijuana and other minor offences, it remains open to the government to consider whether to decriminalize or simply not enforce these acts as a more appropriate cost-cutting approach. What do you think?

Posted by Jeremy Tatum (Windsor Law II)

Wagmatcook First Nation demands inquiry over shooting by RCMP

Members of the Wagmatcook First Nation outside Cape Breton, Nova Scotia are renewing their request for a Public Inquiry into the shooting death of one of their own by RCMP Constable Jeremy Frenette in December 2008. And it seems the Commission for Public Complaints Against the RCMP is listening and has launched a chair-initatied complaint.

This comes in the wake of a decision by Nova Scotia Attorney General Ross Landry that a public inquiry would not be held, stating that it “wouldn’t necessarily” address the First Nation’s concerns. An earlier investigation conducted by Halifax Police Service with the assistance of the RCMP cleared the officer of any criminal wrongdoing and concluded that Frenette acted in self-defence, despite the fact the RCMP officer had been ordered by his senior officer not to enter Simon’s home but still climbed through Simon’s window after twice being refused entry to the home. The reason Frenette chose to enter the home was redacted from the report, which was just provided to the family approximately ten days ago. The report has never been released to the public.

The RCMP has also confirmed it will not be taking disciplinary action against the officer because too much time has passed for the RCMP to begin its investigation. This has left many in the small community, including the common-law wife of the deceased John Simon, questioning why the RCMP did not begin its review sooner and caused great unease in the community since the shooting more than 15 months ago.

In its official reply, the Wagmatcook First Nation says that the police report into Simon’s death was “replete with errors, omissions and questionable inferences”. The report contains 43 pages of partially redacted material. Band lawyer Gary Richard described the report as "deeply flawed”, stating that the report takes quotes from what are apparently interviews with participants in the incident, yet the entire statements and names of the participants are redacted. The report also states that Simon’s common law partner told the police that she and Simon had been intoxicated, arguing over a gun and that a struggle ensued, although the band and wife maintain that there was no confrontation or domestic situation. Richard described the report as “coloured”, and that it takes every opportunity to portray Simon in a way that doesn’t accurately reflect what happened on the evening in question.

The CPC probe will look into whether the RCMP, or those employed under its authority, complied with all appropriate training, procedures and statutory requirements when responding to persons believed to be suicidal or otherwise potentially of a high-risk nature, and if the RCMP conducted an investigation that was adequate and free of any conflict of interest.

Posted by Jeremy Tatum (Windsor Law I)

Federal Court Overturns RCMP Discrimination Case

Law enforcement accountability applies to all areas of law including labour law. The following is a decision I came across that relates to the RCMP. More specifically, it identifies concerns regarding discrimination and the attrition rate of cadets.

In Canada (Attorney General) v. Tahmourpour, the Federal Court overturned the Canadian Human Rights Tribunal's ruling that an Iranian-born Muslim RCMP cadet was singled out for harsh and discriminatory treatment by his trainers on the basis of religion, national or ethnic origin, and race, contrary to the Canadian Human Rights Act. The judge found that the Tribunal made errors of fact and law in reaching its conclusions, and sent the matter back to be heard by a different Tribunal member because he found some of its findings to be unreasonable.

In October 1999, Ali Tahmourpour was dismissed from the training program prior to completing it, and a note was placed in his file to the effect that he should never be permitted to re-enroll. He filed a complaint in 2001 with the Canadian Human Rights Commission alleging that his unsuccessful career as a cadet was due to violations by the RCMP of the anti-discrimination provisions of sections 7 and 14 of the Canadian Human Rights Act.

The Tribunal found that the effect of the RCMP's policy with respect to dress and hygiene and the instructor announcing to the group that there was an exception to the rule for Mr. Tahmourpour's religious pendant was to adversely differentiate him on the basis of his religion. His instructor also, watched Tahmourpour sign his name on a form from right to left in the Persian style that he learned as a child in Iran, and asked, "What kind of f**king language is that, or is it something that you've made up?" the Tribunal found that it was more likely than not that Corporal Boyer treated racialized cadets differently and more negatively than White candidates. It also found "it more probable than not that Corporal Boyer was verbally abusive and hostile towards Mr. Tahmourpour at least in part on the basis of his race, religion, ethnicity or national origin."

The Tribunal ordered the RCMP to offer Tahmourpour an opportunity to enroll in the next available cadet training program and awarded him a package of compensation for lost salary and other damages that his lawyer estimated could in total exceed $500,000, as a remedy. The RCMP applied to the Federal Court of Canada for judicial review of the Tribunal's decision, alleging serious errors of fact and law.

Justice Zinn agreed with the RCMP that "the Tribunal erred in law in holding that a complainant's own perception of differential treatment is sufficient to find there was discrimination." He held that "[a] finding of discrimination must require more than just a complainant's own perception that he has been identified as different. If it were otherwise, there would be no need to adjudicate complaints as every complaint would be well-founded because every complainant perceives that he or she has been treated differently on the basis of one or more of the prohibited grounds of discrimination." I propose that this “something more than perception” is social context evidence. Courts need to look at the experiences of other racialized cadets, and truly understand the “culture” at the RCMP.

The Tribunal attempted to look at the bigger picture in accepting the statistical evidence showing that the attrition rate for racialized cadets was 16.98% while only 6.88% for White cadets. The statistical evidence was criticized by Justice Zinn because he believed that the Tribunal erred in applying this statistical evidence to Mr. Tahmourpour's situation without considering that the data “was not adjusted for cadets who left training for personal reasons, i.e. family illness, injury, medical conditions, a change of mind” and whose contracts were not terminated by the RCMP. “The only evidence that the Tribunal ought to have considered was that of visible minority candidates who were in the same position as Mr. Tahmourpour – those whose contracts were terminated by the RCMP.”

Is the assumption that racialized cadets leave training for personal reasons at a higher rate than White cadets in order to account for this huge discrepancy? Assuming the assumption is correct, is it not reasonable to conclude that racialized cadets are leaving the RCMP training because of personal reasons, i.e. stress, depression, and “change or mind” because of discrimination?

Posted by Qadira Jackson (Windsor Law, 2008)

BC Court of Appeal dismisses RCMP officers' attempt to quash notices of misconduct in Braidwood inquiry investigating taser death of Robert Dziekanski

Read the full judgment in Bentley v. Braidwood, 2009 BCCA 604.

Commission for Public Complaints finds that RCMP officers acted inappropriately in the death of Robert Dziekanski and tasering of a 15-year-old girl

In two reports issued within the last month, the Commission for Public Complaints against the RCMP has found that RCMP officers acted inappropriately in relation to two taser incidents: the death of Robert Dziekanski in Vancouver and the tasering of a 15-year-old girl.

Following an investigation that has lasted over two years, the Commission for Public Complaints against the RCMP has made a finding that 4 RCMP officers used their Tasers prematurely and inappropriately in dealing with Polish immigrant Robert Dziekanski at the Vancouver International Airport. See the Report.

On October 14, 2007, Dziekanski was fired upon five times with a Taser weapon, within 24 seconds of four RCMP officers arriving at the scene. He died minutes later on the floor amidst shocked onlookers. The incident has marred the RCMP ever since, especially with the release of a video shot by one of those onlookers which severely discredited the officer’s claims of Dziekanski’s combative nature. It is disheartening to think of the vastly different conclusions that may have been reached regarding the incident had it not been filmed.

Commissioner Paul Kennedy, whose contract as Commissioner was coincidentally not renewed this past month, made harsh criticisms of the officers in his report. Kennedy chastised them for not making appropriate efforts to defuse the situation and stated that their conduct “fell short of that expected of members of the RCMP.” In total, the Commission made 23 findings and 16 recommendations. One of these findings, that accentuates the need for more stringent accountability measures for police, concerned the “considerable and significant discrepancies in the detail and accuracy of the recollection of the event.” Kennedy recommended that the RCMP conduct a broad review of the effectiveness of a previous quality assessment of Tasers.

Some of the key findings were as follows:

— While they were in the lawful execution of their duties as police officers, the four officers failed to adopt a measured, coordinated and appropriate response to Mr. Dziekanski’s reported behaviour.
— The senior on-scene RCMP member failed to take charge of the RCMP’s response;
— No meaningful attempt was made to de-escalate the situation;
— No warning - visual or otherwise - was given to Mr. Dziekanski prior to him being Tasered by the Conducted Energy Weapon (CEW);
— Use of the CEW against Mr. Dziekanski was premature and inappropriate;
— The CEW was used multiple times on Mr. Dziekanski without any significant effort made to determine the need for further use;
— The RCMP members present should have more actively provided first aid and monitored Mr. Dziekanki’s condition;
— The four RCMP members inappropriately met alone after the death of Mr. Dziekanski prior to giving their statements;
— The versions of events given to investigators by the four RCMP officers involved in the Vancouver International Airport in-custody death of Robert Dziekanski are not deemed credible by the CPC;
— The senior on-scene RCMP member should not have been present at the Integrated Homicide Investigation Team (IHIT) briefing held at the Richmond Detachment on October 14, 2007;
— No bias or partiality toward the involved RCMP members was present in the IHIT investigation of the death of Mr. Dziekanski, but the Pritchard video should have been shown to the members before taking statements from them;
— The RCMP should have released certain information to the media which would have served to clarify information pertaining to the death of Mr. Dziekanski and corrected erroneous information previously provided without compromising the IHIT investigation.

RCMP Commissioner William Elliot responded to the report by writing that the RCMP have taken “concrete action in relation to the death of Mr. Dziekanski and the events leading up to and following that terrible event." This includes changing the RCMP’s policies and training in relation to use of Tasers. For more on the Dziekanski case and recommendations concerning the use of tasers, see the Braidwood Report.

As noted above, following the release of this report, the RCMP Public Complaints Commission expressed grave concerns in a second case involving the tasering of a 15-year-old girl being held in a detention centre. Read the Report. The girl was lying face down, hand-cuffed and in the control of three guards.

It is troubling that the Harper Government has decided not to renew the contract of Kennedy. The decision was severely criticized in a Globe and Mail editorial "The Thin Line of Oversight". See also, Mason, "A Disturbing View of RCMP Oversight."

These incidents serve a stark reminder that improving police accountability and training is an issue that should remain at the forefront of justice reform. A senseless tragedy such as the one that occurred in the Dziekanski case should not be needed to trigger such actions but hopefully, in this case, that is exactly what it will do.

Posted by Martin Mendelzon (Law I)

Eliciting wrongful convictions by Mr. Big lies - the Unger case

In 1992, Kyle Unger was convicted of the sexual assault and killing of 16-year-old Brigitte Grenier. The conviction was based on a confession elicited by means of a Mr Big operation, along with two pieces of corroborative evidence. The first was a hair (said to be consistent with Unger’s) found on the victim’s sweater. The other piece of inculpatory evidence came from a jailhouse informant whose evidence the crown later conceded would not be admissible.

"Mr. Big" sting operations entail the creation of a fictitious criminal organization that the suspect is inveigled into joining. The police devote considerable time, money, and energy into seducing the target to join their criminal gang. They develop a personal relationship with the target and slowly involve him in staged illegal activities on behalf of the organization. Various ruses and threats are used to show the target that there are benefits to joining the gang and negative consequences should he fall out of favour. The scheme usually terminates in an encounter with "the boss" (Mr. Big), an undercover operative posing as a senior member of the organization. He employs a range of inducements in an attempt to elicit a confession to the specific offence being investigated (usually murder). The degree of control exercised by the police over the target is considerable. The tactics are invasive and persistent, usually lasting for several months. In one instance, the sting involved 50 operatives.

Unger’s initial appeal to the Manitoba Court of Appeal following his conviction was rejected and leave to appeal to the Supreme Court of Canada was denied. He spent the next 14 years in prison. In September 2004, a forensic evidence review committee called into question the hair comparison evidence used at the trial. DNA testing showed no trace of Unger on any of the exhibits and could not link him to the crime scene.

He was released on bail on November 24, 2005 pending ministerial review of his case. After innumerable delays, murder charges against him were dropped on October 23, 2009 after the Crown determined it didn't have enough evidence to retry him. Within hours of Unger’s acquittal, Manitoba Justice Minister Dave Chomiak announced that the province would not be offering any compensation for the wrongful conviction because it was Unger's confession that resulted in the conviction in the first place.

At his trial, Mr. Unger recanted his ‘confession’. He said that during the undercover operation, operatives had approached him with promises of gang membership, employment and the opportunity to earn a lot of money. At first, he denied having killed the victim, but after many days of being the beneficiary of the gang’s largesse, he confessed to the murder. He stated in court that he had simply been trying to ingratiate himself with them and that his sole motive for doing so was financial. At one point, he told one of the operative that he had killed his victim near a bridge. He took the operative to the bridge to show him the location. The bridge identified as the murder site had not even been built until several months after the killing had taken place. In the course of eliciting the ‘confession’, RCMP Corporal Forbes (a member of the undercover team) told Unger that if he had killed somebody “. . . that was fine … excellent. … That’s the kind of person I’m looking for.”

Soon after the announcement of his acquittal, Unger was asked by a reporter why he had confessed to a murder he had not committed. He replied that “when you’re young, naive and desperate for money, they hold a lot of promises to you, so you say and do what you have to do to survive…”.

While it is indisputable that Mr. Big operations have been successful in apprehending genuine killers who would otherwise have escaped unscathed, a tactic that is capable of both exposing the guilty and ensnaring the innocent needs to be used very carefully.In the contrived fantasy world created by the RCMP undercover operatives, an innocent suspect may have more reasons to confess falsely than he does to maintain his innocence. Without any independent corroborative evidence, it is not easy to distinguish true confessions from false ones. Many targets of Mr. Big operations have produced confessions that appear to do little more than assert responsibility for the target crime. Such ‘confessions’ may be all that is required to support a conviction.

[LEAP NOTE: Professor Moore recently published a commentary on the Mr. Big strategy:
"The Trouble with Mr. Big" in the Ottawa Citizen].

Posted by Professor Timothy E. Moore
Department of Psychology, Glendon College (York University)

RCMP rejects CPC's recommendation that internal RCMP investigations cease in cases involving death

On Tuesday, the Commission for Public Complaints against the RCMP (CPC) released a report concluding that the RCMP’s internal investigation process is inadequate. Referring to the RCMP’s current process as “Police investigating Police,” the CPC concluded that such practice “does not engender confidence in the transparency and integrity of an investigation and its outcomes.” Further, the research done by the CPC revealed some troubling statistics. First, that 25% of investigators knew the member they were investigating. CPC Chair Paul Kennedy noted that this can result in bias, or in situations where the investigating member is of a lower rank than the member being investigated, intimidation. The report also revealed that internal investigations are conducted by members with significantly different levels of experience and qualification.

The CPC made several recommendations to help remedy the internal investigation process until a more permanent solution is created. Among these recommendations were that all member investigations involving death be referred to an external police force or provincial body. The CPC rejected the current RCMP policy that internal investigations be handled like any other investigation because “[p]olice are held to higher account by the very nature of the work they do.”

The response from RCMP Commissioner William Elliot that it was business as usual was very disappointing and likely did little to satisfy the public anticipation that the CPC's recommendations would be implemented. Elliot argued that there are specific situations where it is impossible for the RCMP not to investigate itself, for example, in remote communities where waiting for outside police forces to arrive and begin an investigation could threaten the credibility of forensic evidence. Elliot seemed to believe the investigative process within the RCMP was not as flawed as the CPC found.

Yet to a scrutinizing public eye, or perhaps the families of people such as Robert Dziekanski or Ian Bush who were killed at the hands of RCMP officers, Elliot’s underwhelming response may not be enough. Unfortunately, his response may actually contribute to a lack of transparency and accountability within the RCMP, which implementation of the recommendations was meant to restore. Further, offering exceptional situations where it may be difficult to implement the recommendations (such as in extremely remote communities) appears to be an excuse as to why the recommendations will not work. In short, Elliot has done nothing to restore public confidence regarding internal RCMP investigations, if anything, he has made the situation worse by attempting to protect a method that is clearly flawed.

Posted by Ashley Paterson (LAW II) (LEAP Summer Intern)

Committee on Public Safety and National Security report urges government to create independent national security review body

This month, the Standing Committee on Public Safety and National Security issued its "Review of the Findings and Recommendations Arising From the Iacobucci and O'Connor Inquiries." These inquiries exposed that Mahar Arar, Abdullah Almalki, Ahmad Abou-Elmaati and Muayyed Narreddin were victims of "inaccurate intelligence sharing practices by Canadian security agencies..." The inquiries also "...exposed the glaring lack of civilian oversight of our national security activities." The report begins with the recognition that in the wake of 9/11, anti-terrorism efforts have "resulted in the racial profiling of members of the Muslim and Arab communities ..."

In its report, the Committee expressed strong concerns that all of the O'Connor recommendations had not been implemented, particularly, those concerning oversight. It issued the following five recommendations:

RECOMMENDATION 1:
The Committee reiterates the recommendation made in its report presented to the House of Commons on January 30, 20071 and recommends that the Government of Canada recognize the urgency of the situation by immediately implementing all the recommendations from the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar.

RECOMMENDATION 2:
The Committee recommends that the Government of Canada immediately issue regular public reports on the progress made in implementing the findings and recommendations arising from the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar and the Internal Inquiry into the Actions of Canadian Officials in Relation to Abdullah Almalki,
Ahmad Abou-Elmaati and Muayyed Nureddin.

RECOMMENDATION 3:
In consideration of the harm done to Mr. Almalki, Mr. Abou-Elmaati and Mr. Nureddin, the Committee recommends:

• That the Government of Canada apologize officially to Mr. Abdullah Almalki, Mr. Ahmad Abbou-Elmaati and Mr. Muayyed Nureddin.

• That the Government of Canada allow for compensation to be paid to Mr. Almalki, Mr. Abou-Elmaati and Mr. Nureddin as reparation for the suffering they endured and the difficulties
they encountered.

• That the Government of Canada do everything necessary to correct misinformation that may exist in records administered by national security agencies in Canada or abroad with respect to Mr. Almalki, Mr. Abou-Elmaati and Mr. Nureddin and members of their families.

RECOMMENDATION 4:
The Committee recommends that the Government of Canada issue a clear ministerial directive against torture and the use of information obtained from torture for all departments and agencies responsible for national security. The ministerial directive must clearly state that
the exchange of information with countries is prohibited when there is a credible risk that it could lead, or contribute, to the use of torture.

RECOMMENDATION 5:
The Committee recommends, once again, that Bill C-81, introduced in the 38th Parliament, An Act to Establish the National Security Committee of Parliamentarians, or a variation of it, be introduced in Parliament at the earliest opportunity.

Posted by Ashley Paterson (Law II) (LEAP Summer Intern)

Older-model RCMP tasers fail test

Unquestionably, the use of conducted energy weapons (“Tasers”) by Canadian law enforcement agents has been met with tremendous scrutiny. On June 1, 2009, RCMP Commissioner Bill Elliot stated that approximately 1600 M-26 (older-model) Tasers would be removed from RCMP use until they could undergo further testing. This decision resulted from an order of the B.C. government to cease use of approximately 600 M-26 Tasers when tests revealed that the weapons were not performing properly. According to Elliot the Tasers were “under-delivering a charge, not over-delivering.” Taser International, who produces the weapons, said “[a] lower energy output equates to a higher safety margin and therefore, the medical safety of these devices is not in question.”

Elliot confessed that it is the RCMP’s objective to test all of their weapons. He further stated that “I cannot tell you we have currently completed that testing.” To make matters worse, the RCMP’s testing of the Tasers did not reveal the same defects that were uncovered when the B.C. government tested them.

Before the order from the B.C. government, the RCMP were in the process of replacing the M-26 Taser models (the older models now being tested) with "'the more reliable' and smaller X-26 Taser,” the same model that four officers used to shock Robert Dziekanski, who died in 2007.

Elliot further stated that “[w]e want to make sure that the weapon…in the odd case that it is resorted to, that it does what our officers should expect it to do...”

Posted by Ashley Paterson (Law II) (LEAP Summer Intern)

Chair of the Commission for Public Complaints Against the RCMP reports on inadequate RCMP investigation

Last Wednesday, May 27, 2009, the Commission for Public Complaints Against the RCMP released a report showing that the British Columbia RCMP made significant errors in their investigation of the death of Kevin St. Arnaud.

St. Arnaud was killed by Constable Ryan Sheremetta on December 19, 2004. St. Arnaud broke into a pharmacy that night, causing Sheremetta to respond to the call. Constable Colleen Erickson also responded to the call in a separate police car. Sheremetta saw St. Arnaud running from the mall where the pharmacy was located and pursued him in his police car. Ultimately, Sheremetta continued the pursuit on foot. Then, when Sheremetta was yelling for St. Arnaud to stop running, St Arnaud turned around and came back towards Sheremetta. Sheremetta says that he then fell on his back, from which position he shot St. Arnaud 3 times in the chest. Constable Erickson’s story is different, however. She says that she observed Sheremetta, while standing in a police shooting stance and not on his back as he reported, shoot twice at St. Arnaud from a distance of approximately ten feet. The autopsy showed that St. Arnaud was shot 3 times.

On March 15, 2006, the Chair of the Commission for Public Complaints against the RCMP, Paul Kennedy, initiated a complaint regarding the St. Arnaud case. The complaint addressed whether members of the RCMP improperly entered into a situation with St. Arnaud that resulted in his death and whether a member of the RCMP improperly discharged his firearm in the incident. The complaint was later amended to question whether members of the RCMP failed to conduct an adequate investigation into the death of St. Arnaud.

Eventually, the RCMP began an investigation as a result of the complaint. The results of the investigation were reported in the Commissioner’s Final Report dated June 26, 2008. This report stated that RCMP members properly responded to the break-in; that Constable Sheremetta’s actions were reasonable because he believed he would suffer grievous bodily harm or death, and that generally the RCMP conducted an adequate investigation into St. Arnaud’s death.

On October 29, 2008 the Commission concluded generally in its interim report that some elements of the RCMP investigation in St. Arnaud’s death were inadequate, some elements of the RCMP investigation into St. Arnaud’s death lacked impartiality, and that the investigative team failed to follow the Major Case Management Model.

The Commission’s findings and recommendations stated, among other things, that “it is imperative that the RCMP foster the confidence of the Canadian public by demonstrating that it embraces the best practices of a policing organization…it is not helpful for the RCMP to engage in rationalization and minimization…A frank acknowledgement of deficiencies or errors, where they exist, would serve not only to establish that the RCMP is accountable for its actions but that it is a principled organization worthy of the public trust.”

Posted by Ashley Paterson (Law II) (LEAP Summer Intern)

Taser to the head can cause seizures

A new report in the Canadian Medical Association Journal says that a taser deployed to the head can cause seizures. Previously, taser-related incidents concentrated on cardiac problems resulting from shots to the chest. The report discusses a police chase involving an Ontario police officer who was mistakenly tasered, ultimately suffering a seizure. Dr. Richard Wennberg, the senior author of the report, concluded that the taser certainly caused the officer’s seizure, as he had no prior history of seizures or underlying conditions that would precipitate a seizure. Listing seizures as a health risk, the report describes the dangers as follows: “Repetitive stimuli such as flashing lights or electrical stimuli can induce seizures in some individuals. The risk may be heightened if electrical stimuli or current passes through the head region.” Taser International had no comment either with respect to the report or the case involving the police officer.

The report is released in the wake of an incident where the RCMP tasered a distraught teenager this week, see http://www.vancouversun.com/news/Mounties+Taser+teen+said+wanted/1406815/story.html. This week the Toronto Police Service released its taser statistics which revealed that two 15-year-old boys were tasered last year. See "Boys 15, Tasered by police, stats show."

Posted by Mandy Cheema (Law III)

Harper government to cut funding of RCMP police complaints commission

According to estimates tabled by the federal Treasury Board, the RCMP Public Complainants Commission which oversees the RCMP will face a substantial cut in funding from the federal government. Commission chair Paul Kennedy has warned that the cuts will force him to cut a policy division created in 2007 to explore the use of tasers and which was responsible for the creation of the new RCMP policy. See the discussion of the new policy in the February 13, 2009 blog entry entitled "RCMP admit dangers of tasers and establish new policy for use and training." The policy division is currently conducting research on how the police deal with mentally ill suspects.

RCMP report warns officers of threat posed by modern technology

It has just been made public that the BC RCMP has warned its officers that modern technology could prove to be a vice. In a report written approximately one month before the Dziekanski death, RCMP officers were warned that phone cameras and You Tube could make them especially vulnerable to public scrutiny of their actions. It further stated that recordings of police activities could lead to "increasingly more public exposure of RCMP member actions that some may perceive to be inappropriate." The BC RCMP has not commented on whether this report was the result of any RCMP-related incident.

Posted by Mandy Cheema (Windsor Law III)

Braidwood Inquiry begins hearing testimony from the four RCMP Constables involved in the Robert Dziekanski taser death

As I write this post, the Braidwood Inquiry is hearing from RCMP Constable Gerry Rundel, one of the four RCMP officers involved in Robert Dziekanski's death. I am here on my law school reading week. This is a remarkable experience which has made it astonishingly clear to me the legislative reforms needed to ensure accountability from police officers.

On the possible role race played

On the first day of Rundel's testimony, Zofia Cisowski, could not bear to watch the video of her son’s final moments and ended up leaving and not returning. Constable Rundel described his initial response to the RCMP dispatch he received shortly before arriving at Vancouver International Airport. What is most troubling is the way the dispatcher described Mr. Dziekanski -- “a non-white male with dark hair wearing a white jacket.” What role did race play in the manner in which the RCMP responded? Was it routine to have four constables arrive separately in their police cruisers? Is it plausible to assume that the RCMP response was influenced, in part, by the moral panic that has gripped airports since 9/11 with its impact felt most prominently by those who loook Arab or Muslim? Constable Rundel did not testify as to whether the description by the dispatcher was communicated amongst the four RCMP officers before or when they converged at the airport.

Whether the description of “non-white male with dark hair” influenced their reaction remains to be seen. Although Commission Counsel raised this possibility, he did so subtly and did not make the link between what role, if any, race played that day at the airport. However, in raising that query, Commission Counsel introduced the possibility for that conclusion to be drawn.

On Constable Rundel’s justification

Perhaps what is even more astonishing is Constable Rundel’s justification for the taser. On numerous occasions, he repeatedly said that he feared for his safety. The cause of this fear? A stapler. It is difficult to believe that an RCMP officer (wearing a bullet-proof vest), trained and fully equipped with various tools, such as a baton, pepper spray, taser and firearm (not to mention the superb physical fitness of most police officers), would be afraid of a stapler- especially in the company of three equally equipped and trained RCMP officers. Surely, wearing a bullet-proof vest would ward off attacks by a stapler.

On the RCMP’s inconsistent position

Prior to Constable Rundel’s testimony, the RCMP maintained that Mr. Dziekanski made combative gestures holding the stapler before the taser was deployed. Constable Rundel further testified that Mr. Dziekanski was demonstrating “non-compliant” behaviour in raising his hands and not complying with RCMP orders. However, the video evidence does not show him raising his hands before the taser is deployed. The decision to taser was made within 4 seconds upon arriving and within thirty seconds, he was tasered five times. During this time, very little was done during the intervals to back off and give Mr. Dziekanski a chance to respond, nor was an effort made during this time to assess his medical situation. Moreover, Walter Kosteckyj’s questioning made it clear that Mr. Dziekanski had only raised his arms after being tasered- in all likelihood, as a natural response to the electric shock waves being sent through his body.

Constable Rundel admitted that Robert Dziekanski may have been frightened and felt trapped when the four RCMP officers surrounded him that day. Upon further questioning, he said there was no time to give Dziekanski a warning before the taser was deployed and admitted no attempt was made to find out where he was from or where he was going. However, he did not back down from maintaining that he and his colleagues acted properly.

On the language barrier

In response to Commission Counsel’s question as to whether the language barrier may have complicated communications, Constable Rundel did not acknowledge the possibility of a language barrier of a Polish immigrant coming to Canada for the very first time. For more on language barriers and law enforcement practices, see Vera Institute of Justice.

For up-to-date information visit the Braidwood Inquiry website.

Posted by Mandy Cheema (Windsor Law III)

RCMP admit dangers of tasers and establish new policy for use and training

On February 12, 2009, RCMP Commissioner William Elliot appeared before the Standing Committee on Public Safety and National Security to update them on changes to RCMP taser policies and training following the release of Standing Committee's June 2008 Report.

The RCMP now acknowledge that tasers or Conducted Energy Weapons, as they are now called, can be deadly particularly in cases of "acutely agitated individuals." As a result, enhanced training and policies on use were put into place in June. According to the new policy, tasers can only be used "where it is necessary to do so in circumstances of threats to officer or public safety." In addition, officers are required to report all uses of the taser including cases where it is drawn but not used.

Whether these changes will reduce the use and deaths associated with what Commissioner Elliott refers to as a "useful weapon" remains to be seen. The British Columbia Civil Liberties Association has called for a moratorium on the use of tasers.

It will be interesting to see what impact the changes have on the recommendations that will be produced once the Braidwood Inquiry in Vancouver is completed. The Braidwood Inquiry was established following the death of Robert Dzierkanski at Vancouver's International Airport in October of 2007. Dzierkanski was tasered five times.

Posted by Professor Tanovich and Robert Tarantino

Commission for Public Complaints Against the RCMP releases first major study of complaint review process

This week the Commission for Public Complaints Against the RCMP issued its first ever report on the RCMP public complaints process entitled Review of the RCMP's Public Complaint Records 2007. In 2007, 3,104 complaints were made against the RCMP with neglect of duty, improper attitude and improper use of force being the most common issues raised. Unfortunately, there is no specific category for racial profiling and so it is unclear how many complaints involved racial discrimination.

The Commission headed by Paul Kennedy, Chair, raised a number of concerns including an under-reporting of complaints in rural and remote areas and lack of awareness of the rights of complainants. In an effort to improve public trust, transparency and accountability, the Commission issued the following recommendations:

Recommendations

"Recognizing the importance of Force-wide consistency and based on the findings of the analyses within the Review of the Record Project, the Commission recommends the following:

1. That the Professional Standards and External Review Directorate at RCMP Headquarters organize a Force-wide meeting of divisional Professional Standards Units and the Commission in order to discuss best practices and ways of improving efficiency and effectiveness in the public complaint process.

2. That the Professional Standards and External Review Directorate at RCMP Headquarters send out a directive clearly articulating:

a. when it is appropriate to informally resolve improper use of force complaints and when it is not;

b. how public complaints defined under Part VII of the RCMP Act are to be processed when the complainant raises statutory offence allegations; and

c. when it is appropriate to terminate a public complaint under the RCMP Act and what information must be included in a Notice of Direction.

3. That the RCMP implement a more efficient means of tracking public complaints and that Divisions and detachments provide the Commission with a copy of all of the outstanding complaint dispositions.

4. That the RCMP ensure that those tasked with capturing public complaints and writing complaint dispositions be appropriately trained and that manuals related to the public complaint process be immediately updated to ensure a standardized national approach.

5. That the RCMP commit to improving its service standards by implementing ways to reduce wait times and increase processing times for complaint dispositions.

6. That the RCMP ensure that all of the complaint dispositions be provided to the Commission concurrent to being provided to the member and the complainant."

Posted by Professor Tanovich