Review of the Record Project – 2009

Allegations

A total of 4,835 allegations, an increase from 4,511 reported in 2008, were made against the RCMP and its members, representing an average of approximately 2.8 allegations per complaint^{Footnote 22}. It is interesting to note that, while the total number of completed complaint dispositions tracked in 2009 is below that of 2008, allegations per complaint exceeded that of the previous year, which averaged approximately 2.5 allegations per complaint.

The most common complaint allegations identified were "Neglect of Duty" (32%), "Improper Attitude" (19%) and "Improper Use of Force" (12%). Of note, serious allegations, including "Improper Use of Force", "Improper Use of a Firearm" and "Statutory Offence" accounted for 15% of total allegations, which is consistent with the previous year's proportion of 14%.

For a complete breakdown of the Force-wide allegations illustrated below, see Appendix F.

Figure 5: Force-Wide Allegations Breakdown

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Regional breakdown

From a regional perspective, the most common complaint allegations identified by the RCMP in the Northwest Region were "Neglect of Duty" (35%) and "Improper Attitude" (19%), as well as "Irregularity in Procedure" and "Improper Use of Force" at 9% each. Again, these results are consistent with the findings reported in 2008. Of note, while the region experienced a 2% decline in its proportion of "Statutory Offence" allegations, it continued to maintain

the highest Force-wide average in this allegation category, accounting for 75% of the national total.

Likewise, in the Pacific Region, the three most common complaint allegations were "Neglect of Duty" (29%), "Improper Attitude" (17%) and "Improper Use of Force" (16%). In fact, the Pacific Region sustained the highest Force-wide average of "Improper Use of Force" allegations, incurring 54% of the national total in this category.

In the Atlantic Region, the most common allegations were "Neglect of Duty" (29%), "Improper Attitude" (26%), and "Improper Use of Force" (11%), which surpassed "Irregularity in Procedure" and "Oppressive Conduct", each declining from 12% of regional complaint allegations as reported in 2008 to 6% and 7%, respectively, in 2009. It is of note that "L" Division and "H" Division were among the divisions with the highest proportions of reported "Improper Attitude" allegations, with 49% and 30%, respectively.

The Central Region experienced the greatest shift in allegations relative to 2008, with the three most common representing "Neglect of Duty" (48%), which increased by 23% from the proportion reported in the previous year, "Oppressive Conduct" (17%) and "Improper Attitude" (16%). The latter two allegations declined from 22% and 24%, respectively, as reported in 2008.

For a complete breakdown of allegations by region, see Appendix G.

Over the three-year Review of the RCMP's Public Complaint Records Project, the Commission has continued to track allegations lodged with the Commission versus those lodged with the RCMP. This data collection is performed for the purpose of identifying whether certain allegation types are more likely to be lodged with the Commission, due to the seriousness of the complaint or the complainants' level of comfort in dealing with an independent agency.

In 2009, with the exception of "Other" allegations (33%), all allegation types were more likely to be lodged with the Commission. The current reporting year also experienced an increase in "Statutory Offence" allegations lodged with the Commission (54%), which were more likely to be reported to the RCMP (51%) in 2008.

In fact, 9 of the 17 allegation types were lodged with the Commission at least 75% of the time. These allegation types included: "Improper Use of Firearms" (89%); "Irregularity in Procedure" (76%); "Neglect of Duty" (83%); "Mishandling of Property" (77%); "Improper Arrest" (79%); "Improper Persons/Vehicles Search" (82%); "Improper Search of Premises" (79%); "Equipment" (100%); and "Service" (92%).

These figures are indicative of the overall trend toward increased Commission-lodged complaints, relative to the RCMP, and a growing awareness and understanding of the Commission in the RCMP public complaint process across Canada.

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Issues

Finally, for every complaint disposition received, the Commission analyzed the incident details in order to identify issues related to the nature of the complaint.^{Footnote 23} The most common issues associated with the complaints in a Force-wide analysis were "Attitude"^{Footnote 24} (16%), "Criminal Investigation Quality (RCMP)" (9%), "Arrest" (8%), "Vehicular Incidents" (8%) and issues related to "Service" (7%), which declined from 12% as reported in the previous year. Of note, "Police Physical Abuse (no restraints)", which often corresponds to "Improper Use of Force" allegations, accounted for 5% of complaint issues reported throughout the year.

Overall, a total of 5,708 issues were reported in 2009, a slight increase from the 5,623 issues tracked in the previous reporting year. A comparison of these figures reveals a general consistency across the majority of complaint issues identified, albeit with a few exceptions. While representing a small percentage of total issues, complaint dispositions involving lethal weapons have steadily

increased, from 19 reported issues in 2007 to 45 in 2009. In regard to issues dealing with chemical irritants, specifically pepper spray, 2009 experienced a growth in cases, from 21 complaint issues in 2008 to 33 complaint issues in the current reporting year. In contrast, complaint dispositions related to conducted energy weapons (CEWs) declined from 35 issues reported in 2008 to 25 in 2009. Attention was also given to the number of complaint dispositions involving police dogs, including cases of dog bites, which decreased from 23 issues to 16 issues over the past two reporting periods. Finally, complaints dealing with mental illness jumped from 69 reported issues in 2008 to 90 issues in 2009. For a complete breakdown of Force-wide issues, see Appendix E.

Regional breakdown

Broken down by region, the three most common issues raised in the Northwest Region were "Attitude" (14%), "Criminal Investigation Quality (RCMP)" (10%), and "Arrest" (9%).

Likewise, in the Pacific Region, the most common issues included "Attitude" (15%), "Arrest" (9%), and "Vehicular Incidents" (9%). Of note, policy issues declined from 19 or 0.9% of total issues in 2008 to a mere 2 cases, accounting for less than 0.1%, in 2009.

Complaints in the Atlantic Region often included issues related to "Attitude" (18%), "Vehicular Incidents" (10%), and "Criminal Investigation Quality (RCMP)" (10%), an issue that doubled in reported cases relative to 2008.

Finally, the three most common issues raised in the Central Region were "Attitude" (18%), "Service" (15%), and "Criminal Investigation Quality (RCMP)" (13%).

Investigations and Final Reports

Of the complaint dispositions received by the Commission, 834 were formally investigated and a Final Report issued, representing 49% of the total Force-wide dispositions. These reports involved 3,032 allegations, with "Improper Use of Force", "Statutory Offence", "Improper Arrest" and "Mishandling of Property" most likely to be disposed of in this manner.

Following investigation, the RCMP provided a determination of either "supported" or "unsupported" on 2,960 of the allegations. However, the RCMP was unable to make a determination on 72 allegations reported. These allegations were identified as "undetermined".

In reviewing the allegations in which a determination was reached, only 9% were found to be supported by the RCMP. For the allegation categories that were most likely to be disposed of through a Final Report, the RCMP did not support the allegations between 82% and 100% of the time.^{Footnote 27} It is of note that, among the allegations where a determination of "unsupported" was made, "Statutory Offence" (100%), "Irregularity – Evidence" (100%), "Improper Use of Force" (97%), and "Improper Use of Firearms" (97%) were most likely to be deemed unsubstantiated by the RCMP. Alternatively, in considering the allegations that were supported by the RCMP, "Service" (32% supported), "Mishandling of Property" (18% supported) and "Improper Attitude" (16% supported) had the highest proportion of substantiated claims among all allegation categories. Also of note, the majority of "Policy" allegations, a classification reserved for public complaints regarding RCMP policies or their application, were found to be substantiated (53% supported). With respect to serious allegations ("Improper Use of Force", "Improper Use of Firearms" and "Statutory Offence"), the RCMP supported 14 of the 578 allegations reported (2.4%), a slight decrease from 3% supported in 2008.

For a complete breakdown of allegations for Final Reports, see Appendix I.

Regional breakdown

From a regional perspective, the Northwest Region issued a Final Report in 44% of its cases, an increase from 39% reported in 2008. This proportion is slightly lower than the Force-wide average of 49%. Of the 1,325 allegations subject to a Final Report, those most likely to be resolved in this manner were "Improper Use of Force", "Statutory Offence" and "Irregularity – Evidence". When considering the allegations that were deemed either supported or unsupported, it was found that only 9% of the 1,290 allegations were supported. These allegations were most likely related to "Policy" (67% supported), "Service" (27% supported), "Mishandling of Property" (25% supported), and "Improper Attitude" (14% supported), while allegations relating to "Improper Use of Firearms" (100% unsupported), "Statutory Offence" (100% unsupported), "Irregularity in Evidence" (100% unsupported), "Improper Use of Force" (100% unsupported), and "Improper Arrest" (98% unsupported) were most likely to be unsupported. Overall, 35 allegations were found to be undetermined.

The Pacific Region issued a Final Report in 51% of its cases, a noticeable increase from 39% as reported in 2008. This proportion is also marginally above the Force-wide average of 49%. Of the 1,166 allegations disposed of in the Pacific Region, those most likely to be resolved in this manner were "Improper Use of Force", "Improper Use of Firearms" and "Mishandling of Property". However, when looking at the allegations that were deemed either supported or unsupported, it was found that only 10% of the allegations were substantiated through RCMP investigation. Those supported were most likely related to "Improper Attitude" (21% supported), "Policy" (17% supported), "Mishandling of Property" (13% supported) and "Neglect of Duty" (11% supported); while allegations relating to "Improper Use of Firearms" (100% unsupported), "Statutory Offence" (100% unsupported) "Irregularity  – Evidence" (100% unsupported), "Improper Persons/Vehicles Search" (100% unsupported), and "Improper Use of Force" (94% unsupported) were most likely to be unsupported. An additional 28 allegations were reported as undetermined within the Pacific Region.

The Atlantic Region issued a Final Report in 59% of its cases, a slight decrease from 61% reported in 2008, but well above the 2009 Force-wide average of 49%. Of the 443 allegations reported, those most likely to be resolved in this manner were "Policy", "Improper Use of Force", "Neglect of Duty" and "Improper Arrest". Following investigation, 14 allegations were identified as undetermined. However, when considering the allegations that were deemed either supported or unsupported, it was found that only 10% of the 429 allegations were supported. Those allegations most likely to be supported related to "Policy" (80% supported), "Service" (43% supported), and "Driving Irregularity" (40% supported); while allegations relating to "Improper Use of Force" (100% unsupported), "Improper Use of Firearms" (100% unsupported), "Improper Arrest" (100% unsupported), and "Improper Search of Premises" (100% unsupported) were most likely to be unsupported.

Finally, the Central Region issued a Final Report in 50% of its cases, well below the 63% reported in 2008.  These Final Reports addressed 98 allegations, with "Driving Irregularity" and "Improper Use of Force" most likely to be disposed of in this manner. However, in comparing the allegations that were determined to be supported or unsupported, it was found that only 6%, slightly below the national average of 9%, were supported. The allegations most likely to be supported related to "Improper Use of Firearms" (100% supported) and "Policy" (100% supported); while allegations relating to "Improper Use of Force" (100% unsupported), "Irregularity in Procedure" (100% unsupported) and "Neglect of Duty" (98% unsupported) were most likely to be unsupported.

For a complete breakdown of allegations deemed supported or unsupported, see Appendix J.

Informal Resolutions

Pursuant to section 45.36 of the RCMP Act, a public complaint against the RCMP can be disposed of informally when the consent of both parties involved is obtained. Informal resolutions are documented on Form 4110^{Footnote 28} and the RCMP must "ensure that Section 8 contains sufficient information that outlines what action was taken in response to the complaint, exactly what the parties agreed to and that it is signed by both parties (emphasis added)."^{Footnote 29} Both parties would include, in this instance, the complainant and the member/ RCMP.

Unfortunately, there appears to be little compliance with the intent of informal resolutions in that it is often difficult to determine how a resolution was achieved and if both parties have agreed to the outcome.^{Footnote 30} In fact, the Commission identified 36 instances whereby the members involved were informed of the complaint after the disposition was issued^{Footnote 31}. While the majority of these complaints involved Final Reports, 6% were resolved through informal resolution. This is concerning as it suggests that the member(s) subject to the complaints were not involved in the informal resolution process. Nevertheless, there are a variety of justifiable reasons for which this may be the case. For example: unavailability of members due to shift work, personality conflicts between complainants and members, resolutions being made at the time of complaint lodging, or a member's refusal to take part due to conflict of interest or on other valid grounds. Still, as a method for fostering discussion and mutual understanding between members and complainants, the Commission encourages all subject members to be actively involved in the informal resolution process. The Commission will continue to monitor, investigate, and document this trend in future Review of the RCMP's Public Complaint Records reports.

Informal resolutions represented the second most common way to dispose of a complaint, with 505 completed complaints accounting for 30% of the dispositions examined, a decrease from 34% reported in 2008.^{Footnote 32} Of the 1,031 allegations identified, those relating to "Service", "Driving Irregularity", "Policy" and "Improper Attitude" were most likely to be informally resolved.

Regional breakdown

From a regional perspective, the Northwest Region informally resolved 33% of its public complaints, which dealt with 463 allegations in total. In 2008, this region informally resolved 39% of its public complaints in this manner. Consistent with the Force-wide results, allegations most likely to be resolved informally in the Northwest Region included "Driving Irregularity", "Service", "Policy" and "Improper Attitude".

The Pacific Region resolved 30% of its public complaints in this manner, dealing with 448 allegations in total. This is a decrease from the 37% of complaints that were informally resolved in 2008. Allegations most likely to result in an informal resolution were "Improper Attitude" and "Policy".

The Atlantic Region informally resolved 24% of its public complaints, which dealt with 100 allegations in total. Unlike the preceding two regions, the Atlantic Region experienced an increase in its percentage of informal resolutions, from a low of 20% in 2008. Allegations most likely to be resolved in this manner were "Improper Attitude", "Driving Irregularity", "Irregularity – Evidence", "Improper Search of Premises", and "Oppressive Conduct".

The Central Region informally resolved only 13% of its public complaints, well below the Force-wide average of 30% and the averages demonstrated by the aforementioned regions. However, 2009 marks an increase in the proportion of informal resolutions stemming from the Central Region, as only 6% of complaints were disposed of in this manner in the previous year. A total of 20 allegations were addressed by this type of disposition, including 4 allegations of "Improper Attitude", 7 allegations of "Neglect of Duty", 1 allegation of "Mishandling of Property", and 8 allegations concerning "Oppressive Conduct".

For a complete breakdown of allegations disposed of through informal resolution, see Appendix K.

Informal Resolution of Improper Use of Force Complaints

The Commission remains concerned that some members of the RCMP continue to informally resolve serious allegations,^{Footnote 33} including those involving "Improper Use of Force". This undermines the public complaint process and limits the effectiveness of police oversight, as the complainant is, in most cases, barred from accessing the review process after an informal resolution has been established. While there may be incidents when it is appropriate to informally resolve seemingly serious allegations involving "Improper Use of Force" (as they are deemed to be relatively minor in nature), in general, this type of allegation is not conducive to a disposition involving informal resolution. Some informal resolutions for "Improper Use of Force" allegations have involved the alleged deployment or threatened deployment of a CEW, the use of pepper spray, the improper use of a firearm and/or descriptions of substantial injuries sustained during interactions with the RCMP. It is these types of complaints, disposed of through the informal resolution process, which the Commission deems to be improper.

In order to remain consistent with RCMP policy, the Commission does not believe that these types of allegations should be informally resolved, due to the presence of weapons and/or injuries, and therefore, the Commission believes that such allegations should be subjected to a full investigation and Final Report by the RCMP. In accordance with RCMP policy Administration Manual XII.2 – Public Complaints, a public complaint cannot be disposed of informally if:

1. a complaint alleges serious misconduct; or
2. a situation involves a subject member being arrested or a warrant to arrest being issued.

Accordingly, when the Commission receives information that such a complaint has been informally resolved, either a request is made to the RCMP for further information to determine the seriousness of the allegation(s), or the RCMP is advised that, given the information on Form 4110, an informal resolution is not the most appropriate disposition and an investigation is recommended. Details of the RCMP's response to these requests are provided in the Follow-Up Section of this report.

In reviewing completed complaint dispositions dealing with informal resolutions for 2009, the Commission noticed that 6% of informally resolved allegations involved "Improper Use of Force" and that 10% of all "Improper Use of Force" allegations resulted in an informal resolution.

A detailed analysis of these allegations revealed that 29% were disposed of in a manner that the Commission deemed inappropriate given the seriousness of the circumstances reported. Furthermore, it was found that 2% of all completed complaint records were associated with the improper resolution of "Improper Use of Force" allegations.

In general, improper informal resolutions for these allegations were most likely to occur in "J" Division and "E" Division.

While the RCMP is strongly encouraged to resolve all "Improper Use of Force" allegations through an investigation and Final Report, the Commission is pleased to note that 2009 experienced a 30% decrease in the proportion of improper informal resolutions in this allegation category compared to the previous year. The Commission will continue to monitor lapses in policy related to this area and will follow-up with the RCMP on all related cases.

Case Profile: Informal Resolution of Improper Use of Force Complaints

An example of a complaint involving a serious allegation in which the Commission believed an investigation should have taken place involved a member, from "E" Division, in an unmarked car approaching a group of youth. During the interaction, which included an investigation into the underage consumption of alcohol in public, the complainant was allegedly repeatedly thrown to the ground and threatened with charges, but released into the care of the complainant's friends without charges being forwarded. The materials received by the Commission indicated that the member did not enter this occurrence into PRIME ("E" Division's reporting system). Given that force was used and no entry was made, the Commission is of the belief that an informal resolution was not the most appropriate means for disposing of this complaint.

An example of an allegation of "Improper Use of Force" being informally resolved from "J" Division included a member deploying pepper spray on a family dog. In fact, the member was responding to a call but attended the wrong address. This incident was not clearly described on the Form 4110. Upon complaining to the member's supervisor, the complainant was allegedly told that he or she was fortunate the dog was not shot instead. Given the circumstances of this incident, an investigation by the RCMP appeared warranted.

Finally, the Commission has provided two additional examples originating from "E" Division. The first case began with allegations of excessive use of force stemming from an arrest for impaired driving. The complainant alleged that he or she was slammed to the ground and punched in the head, neck and arm. Injuries sustained were documented by the complainant and it was requested that these photos be shown to the member as part of the informal resolution process. The Commission recommended that an investigation be undertaken and a Final Report issued; however, the informal resolution was allowed to stand.

The second incident involved a complainant who alleged that, while officers were responding to a call relating to assault, they immediately resorted to using force to subdue the complainant. The complainant, however, alleged that he was involved only to break up a fight between his wife and several other women. Furthermore, the complainant alleged that he was not given the opportunity to explain the situation to the officers. Given that force appeared to be the first intervention technique utilized, the Commission deemed this to be an improper informal resolution.

Withdrawals

There are occasions when a complainant wishes to withdraw his or her complaint, which can be done at any time during the public complaint process. According to RCMP policy, the withdrawal of a complaint is to be captured on Form 4110 and the reason for the withdrawal is to be clearly documented in its Section 8.^{Footnote 34} In addition, RCMP policy and guidelines state that there must be "unequivocal evidence of the complainant's wish to withdraw." It should be noted that the RCMP is not obligated to accept a request to withdraw a complaint, particularly if it is estimated that doing so would not be in the best interest of the public complaint system.

Consistent with the previous year's findings, Force-wide complaint withdrawals accounted for 16% of all completed dispositions. Furthermore, of the 4,835 total allegations reported in 2009, 12% were withdrawn by the complainants. Those most likely to be withdrawn were "Improper Persons/Vehicles Search" and "Improper Search of Premises". For a complete breakdown of allegations for withdrawn complaints, see Appendix L.

Still, the Commission has continued to express concern regarding the withdrawal process. For example, there is evidence that informal resolutions may have been improperly classified as withdrawals; there is limited documentation with respect to this type of disposition; and complainants are, in most cases, barred from accessing the review process following a withdrawal, thereby circumventing the public complaint process and undermining police oversight and accountability.

Due to these concerns over the execution and interpretation of withdrawals and their tendency to weaken the transparency and accountability of the RCMP public complaint system, the Commission fully supported the RCMP's decision to eliminate this resolution technique as of April 2010.

Regional breakdown

From a regional perspective, the Northwest disposed of 20% of its public complaints in this manner; an increase from 16% reported in 2008. A divisional analysis reveals that a substantial rise in withdrawals stemming from "V" Division, from 19% of the territory's complaint dispositions in 2008 to 50% in 2009, accounted for a large share of the Region's increase. Of the 319 allegations withdrawn in this region, those most likely to be withdrawn were "Improper Search of Premises", "Improper Persons/Vehicles Search", and "Improper Use of Firearms".

The Pacific Region disposed of 13% of its public complaints in this manner, a decrease from 17% reported in 2008. Of the 202 total allegations withdrawn, those most likely to be resolved by way of withdrawal included "Improper Search of Premises" and "Service".

The Atlantic Region disposed of 14% of its public complaints through the withdrawal process, which is comparable to 15% recorded in 2008. Of the 58 allegations withdrawn in this region, those most likely to be withdrawn were "Service" and "Improper Persons/Vehicles Search".

Finally, the Central Region disposed of 15% of its public complaints in this manner (a total of 11 complaints). This is a slight increase from the 13% reported in 2008. Of the 20 total allegations withdrawn, "Improper Attitude" was most likely to be resolved through this resolution technique.

Serious Allegations Withdrawn

As of 2007, the Commission has noticed that complainants' requests for withdrawals relating to serious allegations have been accepted by the RCMP with little or no explanation as to the reason for the request. Serious allegations, especially incidents involving weapons or injury, should not be permitted to be withdrawn, as it undermines the integrity of the public complaint process and is unfair to both members and complainants. Rather, refusal to accept a request for withdrawal under these circumstances would appear to be the most appropriate response. The RCMP should investigate these complaints to the best of their ability, as other disposition types are available should the complainant choose not to participate in the public complaint process. 

In reviewing the completed complaint dispositions reported in 2009, the Commission concluded that 15% of all withdrawn complaints included serious allegations—those being "Improper Use of Force", "Improper Use of Firearms", and "Statutory Offence". This represents a slight decrease from 17% reported in the previous year. Furthermore, 12% of all withdrawn allegations were considered serious in nature. Overall, withdrawn complaints containing serious allegations accounted for 2.5% of the total completed complaint records lodged in 2009.

Figure 10: Type of Serious Allegations Withdrawn

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Case Profile: Serious Allegations Withdrawn

An example of a serious allegation withdrawn was reported in "E" Division. The complaint involved an allegation of "Improper Use of Force" but did not include any details regarding the incident. Additional details were provided to the Commission upon request, but, due to the severity of the allegation and the fact that an investigation had occurred at least in part, a Final Report should have been issued. The RCMP maintained that the complainant was satisfied with the explanation of the investigation that was provided. However, as withdrawals do not have to be accepted, this appeared to be an instance where a Final Report should have been produced.

Another example of an unclear disposition and a withdrawal deemed inappropriate by the Commission stemmed from an incident in "E" Division and involved the threatened use of a CEW. Although the complainant was a third party, the withdrawal was apparently due to the complainant's belief that having the RCMP investigate their own members was not a sufficient response to the incident in question. Furthermore, this disposition occurred even after the elimination of withdrawals as a viable disposition option. The Commission felt that the withdrawal should have been rejected and a termination letter issued. Finally, as the complainant refused to sign Form 4110, the withdrawal in this instance was not deemed an appropriate means of disposition.

Terminations (Notice of Direction)^{Footnote 35}

A Notice of Direction, rather than a Final Report, is issued when the RCMP decides not to investigate a complaint or when an investigation into a complaint is terminated. The RCMP may decide to terminate a complaint based on one of three distinct grounds provided for in paragraphs (a), (b) and (c) of subsection 45.36(5) of the RCMP Act. These decisions may be reviewed by the Commission if deemed necessary. Essentially, a termination should not apply to a public complaint investigation if there is sufficient information to properly address the complaint in a Final Report.

A brief description of the termination paragraphs and the circumstances in which they would apply is provided below:

Paragraph 45.36(5)(a)

Under paragraph 45.36(5)(a) of the RCMP Act, the RCMP may direct that no investigation be conducted or that an investigation be terminated if "the complaint is one that could more appropriately be dealt with, initially or completely, according to a procedure provided under any other Act of Parliament."

This paragraph is often employed when the complainant is involved in related and ongoing criminal proceedings. However, it is generally not reasonable to assume that a criminal proceeding designed to examine the conduct of a complainant will also examine the conduct of an RCMP member subject to a complaint, unless there is some evidence to the contrary. Therefore, the RCMP must ensure that any ongoing criminal proceedings will deal with each allegation identified in the public complaint before issuing a termination.

A more appropriate use of this paragraph would be in the context of complaints relating to the improper disclosure of information; for example, when processes under the Privacy Act may be invoked to deal with the complaint allegations. It should be noted that civil proceedings and coroners' inquests, in particular, are not processes provided for under federal statutes, and therefore this paragraph should not be applied in such cases.

Paragraph 45.36(5)(b)

Under paragraph 45.36(5)(b) of the Act, the Commissioner may direct that no investigation be conducted or that an investigation be terminated if "the complaint is trivial, frivolous, vexatious or made in bad faith." An RCMP directive states as follows:

• A complaint is trivial when, on its face, it is of no consequence.
• A complaint is frivolous when, on its face, it is devoid of substance.
• A complaint is vexatious when it involves a repetition of unsubstantiated complaints from the same person, all of which share a common theme.
• A complaint is made in bad faith when it is made dishonestly for an improper purpose. Bad faith normally requires the presence of two elements: firstly, the desire to achieve an improper purpose and, secondly, an act of an improper nature that furthers the improper purpose.

This paragraph should be invoked only when the allegations reported contain no substantial or compelling factual basis, where no rational argument is possible, and/or where each aspect of an allegation has been the subject of a previous public complaint by the same complainant. However, it should be noted that what may seem trivial to one person may be quite important to another. Therefore, the investigator's subjective view of the complaint or complainant should not be a factor when deciding to apply this paragraph.

Paragraph 45.36(5)(c)

Paragraph 45.36(5)(c) is most often applied when terminating complaints. The RCMP may direct that no investigation be conducted or that an investigation be terminated if "having regard to all the circumstances, an investigation is not necessary or reasonably practicable."

An example of an appropriate termination citing this paragraph includes cases whereby the complainant was incapable of providing any information that could provide the basis for further investigation within the public complaint process. However, an investigation should not be terminated only on the grounds of a complainant's reluctance to provide a more detailed statement, since in many cases the initial complaint often provides sufficient information to conduct a thorough investigation. A termination will also be reasonable under this paragraph where the conduct complained of involved an individual who was not an RCMP member.

Quantitative Analysis of Terminations

In 2009, 5% of all public complaints, representing 173 allegations, were terminated by the RCMP. The most common grounds for termination fell under paragraph 45.36(5)(c), "investigation or further investigation is not necessary or reasonably practicable" (often perceived to be the "catch-all" provision). The allegation types that were most likely terminated included "Irregularity in Evidence" and "Oppressive Conduct". For a complete breakdown of allegations for terminated complaints, see Appendix M.

Figure 11: Number of Terminated Complaints by Grounds Identified in Subsection 45.36(5) of the RCMP Act

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Regional breakdown

From a regional perspective, the Northwest Region disposed of 3% of its public complaints through a Notice of Direction, addressing 29 allegations in total. This represents a decrease from 6% terminated in 2008. An assessment of the allegations reveals that there were no allegation categories most likely to be the subject of a termination, relative to the other disposition types. However, the grounds for termination most likely invoked in the Northwest Region were included in paragraph 45.36(5)(b).

Consistent with the previous year, the Pacific Region disposed of 6% of its public complaints through the termination process, which addressed 105 allegations. The overwhelming majority (98%) of these Notices of Direction occurred in "E" Division. Allegations most likely to be the subject of a termination were "Irregularity in Procedure", "Statutory Offence", "Irregularity – Evidence", and "Oppressive Conduct". The grounds for termination most likely to be identified in the Pacific Region fell under paragraph 45.36(5)(c).

The Atlantic Region, which relies heavily on Final Reports, disposed of a mere 2% of its total public complaints through terminations, addressing 8 allegations in total. This represents a decrease from 4% reported in 2008 and 9% in 2007. Allegations most likely to be the subject of a termination were "Improper Use of Firearms" and "Statutory Offence". Most often, the grounds for termination were not identified.

The Central Region disposed of 22% of its public complaints through the termination process, addressing 31 allegations in total. This result is significantly higher than the national average of 5%, and represents a slight increase from 19% reported in 2008. Allegations most likely to be the subject of a termination were "Improper Search of Premises" and "Irregularity in Procedure". The grounds for termination most likely to be identified fell under paragraph 45.36(5)(c).

As illustrated in the Regional Breakdown above, the issuance of Notices of Direction differs widely across the Force, indicating a degree of incongruity in terms of how terminations are handled.

Multiple Complaints against Individual Members

A "repeat member" is a member who, over the course of a year, is the subject of two or more separate public complaints. It should be noted that a portion of these repeat members could be the subject of multiple complaints stemming from a single incident or multiple complaints from a single complainant.

It is also conceivable that a member would have an increased likelihood of multiple public complaints depending on the nature of the member's interaction with the public and, potentially, if he or she is posted to a small detachment. It is equally conceivable that a member could be generating multiple public complaints due to aggressive or inappropriate on-duty behaviour. The context of the public complaint would best determine which of the two aforementioned scenarios is most accurate. Due to the importance of this trend, the Commission will continue to monitor and identify which members have multiple complaints against them spanning a number of years, as well as the specific nature of these complaints. Furthermore, as the Review of the Records database grows, there exists a greater opportunity to conduct further research and analysis of these statistics.

Moreover, the Commission is aware that "K" Division and "G" Division utilize multiple complaints as an "early warning" indicator to monitor and track police officers who are displaying conduct-related issues. In addition, the Commission was made aware of a similar project, the "Early Warning Program", operating out of the National Public Complaints Unit at RCMP HQ, which identifies members with multiple complaints and allows the Unit to communicate with the appropriate parties at the divisional and detachment level.

Overall, a total of 332 members had two or more complaints lodged against them in 2009, which represented 12.5% of the total number of members named in the complaints.^{Footnote 37} Although most of these members had only 2 complaints recorded against them, some members had as many as 5 complaints in the year alone. As illustrated in Table 2, the Northwest Region dealt with 49% of the multiple complaint members. Of these members, 7 had 4 complaints lodged against them and 4 had 5 or more complaints lodged against them. At the divisional level, 124 were members based in "E" Division, 83 were located in "K" Division, 44 were from "D" Division, and 24 were operating in "F" Division.

Of the 1,838 allegations lodged against members who had multiple complaints, the most common types were "Neglect of Duty" (27%), "Improper Attitude" (20%), "Improper Use of Force" (14%), and "Improper Arrest" (8%). Interestingly, when members had four complaints lodged against them, "Statutory Offence" (15%) allegations were among the most common types to be reported, while members with five or more complaints often had allegations involving "Improper Persons/Vehicles Search" (15%) reported against them.

Multiple Complaint Member Project

In 2009, the Commission began the Multiple Complaint Member Project. This project is an early warning system designed to identify members who are subject to three or more public complaints, where the allegations are serious in nature, within a twelve-month period.^{Footnote 38}

Once a member is identified under the current criteria, the Commission creates a briefing on the member, which is then presented to both Senior Management and RCMP Professional Standards. The current status of open complaints, as well as descriptions of concluded complaints are tracked, along with any relevant information to be considered for further monitoring of the member.

Professional Standards is then able to share this information with divisions or detachments and may include any recommendations made by the Commission. When members have been identified by the project, the Commission continues to monitor these specific members when analyzing future dispositions.

In the 2009 Report time-frame, the Commission identified 5 members under this project. Two members belonged to "E" Division; 2 members belonged to "F" Division; and 1 belonged to "K" Division. The Commission continues to monitor dispositions relating to public complaints against these members. Although RCMP Professional Standards has an early warning capability for members with multiple complaints, the Commission's focus is on those members with multiple complaints where serious allegations are reported.

Providing Dispositions to the Commission

The RCMP is required to provide the Commission with copies of all complaint dispositions for tracking, review, and analysis. To that end, the average number of days^{Footnote 40} for the Commission to receive a complaint disposition from the RCMP was 77 days for both Commission-lodged and RCMP-lodged complaints. This represents an increase compared to the number of days reported in 2008, when it took, on average, 73 days for dispositions of Commission-lodged complaints and 61 days for dispositions of RCMP-lodged complaints to reach the Commission.

Regional breakdown

This average was also examined regionally. In the Northwest Region, it took, on average, 60 days for the Commission to receive a disposition from the RCMP. This represents a slight decline from the previous year's average of 63 days. Based on the organization that the complaint was lodged with, it took, on average, 58 days to receive a disposition for Commission-lodged complaints as opposed to 67 days for RCMP-lodged complaints.

In the Pacific Region, it took, on average, 116 days for the Commission to receive a disposition from the RCMP. This represents the longest amount of time for receiving a disposition based on a cross-regional comparison, in addition to the largest increase in time compared to the previous year; with 92 average days required to provide a disposition to the Commission in 2008. Further analysis revealed that these findings were attributed to the lengthy period of time required in "E" Division to submit a disposition. Based on the organization that the complaint was lodged with, it took, on average, 115 days for Commission-lodged complaints and 117 days for RCMP-lodged complaints. This is compared to the previous year whereby 95 days passed before the Commission received a disposition for Commission-lodged complaints and 82 days for RCMP-lodged complaints.

In the Atlantic Region, it took, on average, 34 days for the Commission to receive a disposition from the RCMP. This corresponds to 33 days for Commission-lodged complaints and 37 days for RCMP-lodged complaints. Based on a cross-regional comparison, this average represents the shortest amount of time for receiving a disposition from the RCMP. In comparison to 2008, it took 24 days to receive a disposition from the RCMP; which is an average of 23 days for Commission-lodged complaints and 25 days for RCMP-lodged complaints.

In the Central Region, it took, on average, 38 days for the Commission to receive a disposition from the RCMP. This represents 41 days for Commission-lodged complaints and 29 days for RCMP-lodged complaints. In comparison to 2008, it took, on average, 36 days to receive a disposition from the RCMP, which corresponds to 42 days for Commission-lodged complaints and 28 days for RCMP-lodged complaints.

Figure 15: Complaint Timeline Based on the Average Number of Days to Receive a Completed Disposition

Text version

Administrative Issues

Incomplete Complaint Records

On occasion, the Commission has received complaint dispositions that were deemed incomplete; for example, documents were missing or identifying information relating to members or complainants was not provided. In order for dispositions to be properly assessed, complete records are required. Of the complaint dispositions received in 2009, the Commission identified 114 incomplete records, representing 7% of the total number of dispositions received. This represents a 3% improvement from the proportion of incomplete records reported in 2008 and a 7% improvement from the proportion reported in 2007. Regionally, 4% of complaint records from the Pacific Region were deemed incomplete, 9% from the Northwest Region, 11% from the Central Region, and 6% from the Atlantic Region. Overall, the Commission is pleased to report that both the Northwest and Central Regions experienced a modest decline in their share of incomplete complaint records since 2008, while the Atlantic Region showed significant improvement from 17% identified in the previous year.

Incorrect Commission References^{Footnote 41}

When issuing a Final Report or Notice of Direction, the RCMP is required by statute to inform the complainants of their right to request a review of the complaint disposition by the Commission. Nevertheless, the Commission has received dispositions that have included an incorrect or missing reference to this information, thereby limiting the complainants' ability to have full access to the public complaint process. In 2009, the Commission received 33 such dispositions, an improvement from 51 recorded in 2008. Regionally, 6 were identified in the Northwest Region, 19 in the Atlantic Region, which represents an increase of 9 cases from 2008, and 8 were identified in the Pacific Region, which marks a decline of 22 cases from the previous year.

The most significant source of improper Commission references was "H" Division, which accounted for 19 of the total 33 dispositions (58%) and 100% of those identified in the Atlantic Region. These oversights included referencing the wrong mailing address or failing to include an address altogether. Given the size of "H" Division and the number of dispositions lodged throughout the year, this trend is alarming. As a result, the Commission has requested follow-up action upon receipt of these dispositions.

While a variety of administrative issues concerning the quality of dispositions provided by the RCMP have created difficulties for the Review of the RCMP's Public Complaint Records Project, including incomplete 4110 forms and poorly structured Final Reports and Notices of Direction, which have made the Commission's task of capturing data related to public complaints difficult, the RCMP is cooperating with the Commission in order to rectify these recurring issues and improve the overall functioning of the public complaint process.