ARCHIVED - Appendices - Chair's Interim Report - Chair-Initiated Complaint into the Shooting Death of Kevin St. Arnaud

Appendix A – Condensed Timeline of Events Related to Shooting

Appendix B – RCMP Members and Related Persons Involved in Incident and Investigation (positions and ranks noted are as at the time of the events)

Appendix C: Chair-Initiated Public Complaint – Shooting Death of Mr. Kevin St. Arnaud, B.C.

March 15, 2006

File No. PC-2006-0385

As Chair of the Commission for Public Complaints Against the RCMP, I am satisfied that there are reasonable grounds to investigate the shooting death of Kevin St. Arnaud near Vanderhoof, British Columbia, pursuant to subsection 45.37(1) of the RCMP Act.

On December 19, 2004, Kevin St. Arnaud, an unarmed robbery suspect, was shot and killed by a member of the Vanderhoof, B.C. RCMP Detachment.

On January 4, 2005, the British Columbia Civil Liberties Association filed a public complaint against the RCMP alleging that Mr. St. Arnaud was shot unnecessarily and without justification. The Commissioner of the RCMP decided not to conduct a public complaint investigation because there were already three ongoing investigative processes: a criminal investigation; an independent review by an RCMP officer; and a provincial coroner's inquest. Upon review by the Commission for Public Complaints Against the RCMP, the Vice-Chair determined that the RCMP decision not to conduct a public complaint investigation was reasonable at the time.

On February 23, 2006, the Regional Crown Counsel announced that the criminal investigation had been concluded and no criminal charges would be laid.

In light of the significant change of circumstances, I am satisfied that there are now reasonable grounds to investigate the circumstances and events surrounding the shooting death of Mr. St. Arnaud.

Accordingly, pursuant to subsection 45.37(1) of the RCMP Act, I am initiating a complaint in relation to these events, in particular that:

• Members of the RCMP improperly entered into a situation with Mr. St. Arnaud that resulted in his death.
• A member of the RCMP improperly discharged his firearm in the incident.

Appendix D: Commissioner's Direction

Commissioner's Direction (Format PDF, 884 Kb)

Appendix E: Chair's Response

Chair's Report

Complainant: Chair Paul E. Kennedy

September 28, 2006

File No.: PC-2006-0385

Overview

On December 19, 2004, Mr. Kevin St. Arnaud, an unarmed robbery suspect, was shot and killed by a member of the Vanderhoof, RCMP Detachment in British Columbia.

On March 15, 2006, the Chair of the Commission initiated a complaint alleging that unknown members of the RCMP improperly entered into a situation with Mr. St. Arnaud that resulted in his death and that a member of the RCMP improperly discharged his firearm during the incident.

As required by the Royal Canadian Mounted Police Act (the Act),⁶⁸ the complaint was forwarded to the RCMP for investigation. Following a review of the complaint, the RCMP provided a letter dated August 4, 2006, which directed the termination of the investigation into this complaint pursuant to paragraph 45.36(5)(c) of the Act.

That decision is the subject of review in this report and for the reasons set forth below, the evidence leads me to conclude that the RCMP exceeded its jurisdiction in directing the termination of the Chair-initiated complaint.

RCMP's Decision to Terminate a Public Complaint Investigation

In disposing of my complaint, the RCMP provided a notice, which directed a termination of the investigation into the complaint and concluded with the following language:

Therefore, having regard to all these circumstances, investigation into your allegations is not reasonably practicable. Pursuant to section 45.36(5)(c), investigation into your public complaint is terminated. If you are not satisfied with the disposition of your complaint by the RCMP, you may request a review and the RCMP will furnish you with the materials used to prepare this report.

Paragraph 45.36(5)(c) states:

(5) Notwithstanding any other provision of this Part, the Commissioner may direct that no investigation of a complaint under subsection 45.35(1) be commenced or that an investigation of such a complaint be terminated if, in the Commissioner's opinion,
...

• (c) having regard to all the circumstances, investigation or further investigation is not necessary or reasonably practicable.

This subsection gives the Commissioner the authority to terminate only those complaints made pursuant to subsection 45.35(1). This subsection deals with complaints made by "any member of the public." A Chair-initiated complaint is not made pursuant to this subsection, but rather pursuant to section 45.37. By terminating a Chair-initiated complaint made pursuant to subsection 45.37(1) Chief Superintendent Bent on behalf of the Commissioner has exceeded his jurisdiction. In fact, subsection 45.37(4) mandates that the Force investigate the complaint made pursuant to subsection 45.37(1). There is no authority to terminate a complaint initiated by the Chair and to do so flies in the face of the intent and spirit of the Act.

Therefore, given this statutory obligation, it is anticipated that the RCMP will commence an investigation into this matter. It is imperative that this investigation commence forthwith due to its history, including the facts that Mr. St. Arnaud died on December 19, 2004, and that my complaint was made close to seven months ago. Ultimately, unacceptably prolonged delays undermine the effectiveness of oversight and damage the credibility of the process and the RCMP.

I also wish to note that I am sensitive to the concerns expressed by the RCMP relating to the negativities of initiating another review process. Consideration was given to this and other circumstances prior to my decision to initiate a complaint into this matter and I am satisfied that this is a proper case to exercise the power conferred pursuant to subsection 45.37(1).

FINDING: The RCMP exceeded its jurisdiction in directing a termination of an investigation into a complaint filed pursuant to subsection 45.37(1) of the Act.

DIRECTION: I direct the RCMP to commence or continue the investigation into this complaint forthwith.

__________________________________
Paul E. Kennedy
Chair

Appendix F: Commissioner's Final Report

Commissioner's Final Report (PDF Format, 1.78MB)

Appendix G – Summary of Findings and Recommendations

ISSUES: Whether members of the RCMP improperly entered into a situation with Mr. St. Arnaud that resulted in his death; whether a member of the RCMP improperly discharged his firearm in the incident; and whether members of the RCMP failed to conduct an adequate investigation into the death of Mr. St. Arnaud.

Findings

Adequacy of Investigation

Finding: Constable Erickson failed to ensure scene security at the soccer field immediately following the shooting.

Finding: Staff Sergeant Kowalewich should have removed Constable Erickson from the scene at the earliest opportunity, as she was a key eyewitness to the shooting.

Finding: Staff Sergeant Kowalewich failed to ensure scene security at the mall from the earliest opportunity.

Finding: Sergeant Krebs provided the Forensic Identification Section members with only one of two possible versions of the shooting, which may have resulted in a failure to recognize the significance of that portion of the scene, which was ultimately contaminated by the footprints of other officers.

Finding: The Forensic Identification Section failed to seize blood samples from the snow adjacent to Mr. St. Arnaud.

Finding: Corporal MacLellan failed to adequately prepare for the interview of Constable Sheremetta by first interviewing Constable Erickson.

Finding: Corporal MacLellan failed to identify the purpose of his interview of Constable Sheremetta and in particular to define the statement as a duty to account statement.

Finding: Corporal MacLellan failed to apprehend the importance of the contradictory evidence regarding Constable Sheremetta's shooting position.

Finding: Corporal MacLellan failed to re-interview Constable Sheremetta once he discovered the discrepancy between Constable Sheremetta's and Constable Erickson's versions of the shooting.

Finding: Sergeant Krebs failed to exercise effective control over Corporal MacLellan's role in the investigation after initially using him to take Constable Sheremetta's duty to account statement.

Finding: The selection process for use of force experts gives rise to the possibility of real or perceived bias.

Finding: There was an excessive delay in appointing the use of force expert due to insufficient resources.

Finding: The RCMP failed to appoint a use of force expert with sufficient experience to handle a serious case dealing with a police involved homicide.

Recommendation: The RCMP should train a sufficiently large pool of full-time use of force experts to ensure qualified and experienced experts are available in a timely fashion to deal with major cases.

Recommendation: The RCMP should streamline its appointment process for use of force experts and ensure transparency by establishing a set protocol for appointments.

Finding: Sergeant Krebs failed to provide sufficient background material to Sergeant Gallant to permit a thorough blood stain analysis.

Finding: Sergeant Gallant made erroneous assumptions in arriving at conclusions not scientifically supported by the evidence.

Finding: Sergeant Gallant demonstrated tunnel vision by his reluctance to modify his conclusions when faced with additional information that called his original conclusions into question.

Recommendation: The RCMP should ensure that the primary investigators involved in police investigating police conduct brief and continually update the forensic identification officers that are examining the scene to ensure that they are aware of all relevant information to assist in their examination.

Impartiality of Investigation

Finding: Staff Sergeant Kowalewich should have removed Constable Erickson from the scene at the earliest opportunity, to avoid any real or perceived bias, given her work relationship with Constable Sheremetta.

Finding: Sergeant Krebs should have determined the availability of qualified and experienced non-detachment members to take statements from Constables Sheremetta and Erickson.

Finding: Corporal MacLellan was improperly involved in the investigation of Mr. St. Arnaud's death.

Finding: Corporal MacLellan asked leading questions during the interviews of Constable Sheremetta and Constable Erickson which, although not appropriate, did not affect the reliability of the statements.

Recommendation: The RCMP should act forthwith to implement policy that provides direction to on-scene RCMP members in major cases involving investigation of police conduct, i.e. situations where the police investigate the police, including the need to ensure real and perceived impartiality.

Finding: The investigation was carried out in a timely manner except for the delay in selecting a use of force expert.

Major Case Management

Recommendation: The Major Case Management policy should be modified to clarify the distinction between those managers and supervisors providing operational decision-making and guidance and those providing administrative support.

Conduct of Constables Erickson and Sheremetta

Finding: Constable Sheremetta and Constable Erickson failed to provide first aid/CPR to Mr. St. Arnaud, as required by policy.

Finding: The officers entered into their interactions with Mr. St. Arnaud lawfully and were duty-bound to do so.

Finding: Constable Sheremetta shot Mr. St. Arnaud in self-defence after reasonably perceiving that Mr. St. Arnaud posed a threat of grievous bodily harm or death and believing that he could not otherwise preserve himself from grievous bodily harm or death other than by using deadly force.

Appendix H – Maps of Crime Scene

Appendix I – Utterances, Statements and Testimony of Constable Sheremetta

The following is an assessment of the weight to be given to Constable Sheremetta's evidence.

Constable Sheremetta's Spontaneous Utterances

The area of spontaneous utterances has been considered by the courts and legal commentators as an exception to the hearsay rule.⁶⁹ A spontaneous utterance has been described as a "statement that describes or explains an event or condition made while the person was perceiving the event or condition, or immediately thereafter."⁷⁰ The test regarding the admissibility of spontaneous utterances is whether the "statement was so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded."⁷¹

In this particular case, Constable Erickson stated that when she approached Constable Sheremetta, he commented, "He kept coming." The timing of this statement was immediately after the shooting and was unsolicited. I am satisfied that this utterance meets the test for admissibility in that its spontaneity and proximity to the events are sufficient to disregard any suggestion of concoction. I thus attach considerable weight to this statement as being indicative of Constable Sheremetta's primary concern at the time of the shooting.

Constable Sheremetta's Duty to Account Statement

RCMP members are required to provide an "accounting" of their activities when directed to do so. This is termed a "duty to account" statement. ⁷² The authority to compel RCMP members to provide a duty to account statement is derived from the fact that RCMP members are required to obey a lawful order from another RCMP member who is superior in rank or who has authority over the member.⁷³ There is no similar requirement for ordinary citizens in the ordinary course of police investigations.
The portions of Constable Sheremetta's duty to account statement, taken by Corporal MacLellan are set forth below:

• He was advised by dispatch that the alarm signal originated in the dispensary area of the pharmacy.
• Upon arriving at the scene he was advised by a witness that Mr. St. Arnaud had dropped from the ceiling of the pharmacy.
• The conditions were icy and slippery.
• He saw Mr. St. Arnaud jump off the roof of the mall.
• He repeatedly shouted commands to stop for police but Mr. St. Arnaud ignored them.
• Mr. St. Arnaud seemed pretty big, taller than he was-about six feet tall.
• He first unholstered his sidearm after rounding his SUV at the beginning of his foot pursuit of Mr. St. Arnaud.
• While running away Mr. St. Arnaud repeatedly looked back at Constable Sheremetta and kept putting his right hand in his pocket, running one-handed.
• He was concerned about not having back-up present.
• Eventually Mr. St. Arnaud came to a stop and raised his arms in the air at which time Constable Sheremetta drew his sidearm a second time because Mr. St. Arnaud was surrendering; Constable Sheremetta was alone; he wanted to gain control of Mr. St. Arnaud and he was concerned about Mr. St. Arnaud's hand being in his pocket.
• Mr. St. Arnaud turned to face Constable Sheremetta and then slowly lowered his arms and advanced toward the officer despite Constable Sheremetta yelling at him to get down on his knees.
• Mr. St. Arnaud told him, "[...] you're going to have to shoot me [...]."
• He backed away to avoid engaging Mr. St. Arnaud and fell on his back.
• He feared being killed if Mr. St. Arnaud got on top of him.
• He screamed at the top of his lungs for Mr. St. Arnaud to stop.
• When Mr.  St. Arnaud continued to advance upon him to about five feet away, as he lay on the ground, he fired two quick shots followed by a third after which Mr. St. Arnaud fell to the ground.
• He got up and backed away from Mr. St. Arnaud, covering him until Constable Erickson arrived.

The timing of this statement is significant in that it was taken while Constable Sheremetta's memory was fresh and there was limited opportunity for his recollection to be affected by outside sources. Corporal MacLellan posed some leading questions, in particular with respect to Constable Sheremetta's articulation of his threat assessment. However, after viewing the audio/video statement, I am satisfied that the questions were designed to focus Constable Sheremetta's response toward addressing the questions asked and not to lead him to a specific response. On the whole, I find the questioning to have been reasonable in the context of a duty to account statement. I also find that Constable Sheremetta appeared to respond promptly and in a forthright manner. Accordingly, I afford this statement significant weight.

 Constable Sheremetta's Subsequent Statement

Constable Sheremetta prepared a second statement in writing with the assistance of his lawyer. This statement was received by the investigative team on March 2, 2005.⁷⁴ This statement added significant detail and greatly enhanced the risk assessment and rationale for Constable Sheremetta's use of force.

Constable Sheremetta also took the opportunity to clarify his first statement. With respect to his observation that Mr. St. Arnaud had jumped off the roof of the mall, he wrote, "The next thing I thought I saw appeared to be a man in mid air about to land on the ground. At the time it was my thought that the man had come off of the roof of the building but I have been advised⁷⁵ that in fact he was coming out the back door [emphasis added]."

However, for the reasons stated below with respect to Constable Sheremetta's credibility, given that the statement was taken after the passage of some time from the date of the shooting and that Constable Sheremetta modified his position to address information that had come to light during the course of the investigation, I attribute no weight to it and it will not be used to assess the matters under review.

Constable Sheremetta's Inquest Testimony

At the coroner's inquest Constable Sheremetta testified that during his time in Vanderhoof he had taken guns off of suspects. A subsequent investigation failed to uncover any evidence to support this assertion and Constable Sheremetta has since been suspended and is subject to a Code of Conduct⁷⁶ proceeding alleging that "[he] did conduct [him]self in a disgraceful manner that could bring discredit on the force, by knowingly making false, misleading or inaccurate statement(s) while testifying at the coroner's inquest into the death of Kevin St. Arnaud, to wit: [his] experience in seizing handguns from suspects during [his] time as a member at Vanderhoof detachment [...]." The matter has also been forwarded to Crown counsel to determine if criminal charges are warranted.

This concern calls Constable Sheremetta's credibility into question especially as it relates to statements and testimony that were not taken proximal to the shooting. Accordingly, I afford Constable Sheremetta's testimony no weight and will not rely upon it in assessing the circumstances that lead to Mr. St. Arnaud's death.

Appendix J – Summary of the Autopsy Findings

On December 21, 2004, Dr. James McNaughton, a pathologist, performed the autopsy on Mr. St. Arnaud at the Royal Inland Hospital in Kamloops, British Columbia. Also present were Sergeant Glen Doll, of the Prince George Forensic Identification Section, who was one of the two forensic identification specialists who first responded to Vanderhoof after the shooting, and Constable Mark Davidson, of the Kamloops Serious Crime Unit. They were present to take photographs and seize exhibits respectively. Dr. McNaughton testified at the coroner's inquest that this is standard practice at autopsies where the police are engaged in a criminal investigation.

At approximately 10:30 a.m. the autopsy commenced. Mr. St. Arnaud's clothes were seized by the RCMP and tissue samples were taken for a toxicological exam. The autopsy report dated January 26, 2005 concluded that Mr. St. Arnaud had died from multiple gun wounds to the chest and abdomen with associated blood loss.

The autopsy revealed four gunshot wounds. The first⁷⁷ was a wound to the left hand, which entered from the back of the hand and exiting through the base of the thumb. Dr. McNaughton concluded that after exiting the hand this bullet then entered Mr. St. Arnaud's abdomen 2.5 cm (1 inch) left of the midline and 10 cm (4 inches) below the left nipple. A large bullet fragment was found embedded on the right side of Mr. St. Arnaud's spine, which Doctor McNaughton concluded had followed this path. Regarding the direction of the shot, the autopsy report read, "The course is front to back, 30-40 degrees inferior to the horizontal and 30 degrees lateral (right) to the sagittal plane."

The second entered the left upper chest region approximately 3 cm (1 inch) above and medial to the left nipple. This bullet passed through the body and exited through the back. Dr. McNaughton determined that it travelled front to back "approximately 30 degrees downward from the horizontal plane and in a slightly lateral direction."

The third gunshot entrance wound was located just to the right of the midline 6 cm (2½ inches) below the nipple line. This bullet also passed through the body and exited through the back. The autopsy report identified this bullet as travelling from front to back "45 degrees inferior to the horizontal plane and approximately 35 degrees lateral to the sagittal plane."

During his testimony at the inquest, Dr. McNaughton stated that more often than not he would have anticipated that both individuals would have been in a standing position when the shots were fired. He qualified this by saying that this did not exclude other possible positions, only that the standing scenario was possible.

The autopsy also recorded various minor injuries. Mr. St. Arnaud had a laceration above the right eyebrow 2.7 cm (1 inch) long. There were superficial lacerations and abrasions over an area of 1.2 cm (½ inch) in greatest dimension at the tip of the right elbow. Below the elbow was another abrasion. Similarly there is another superficial abrasion above the right hip.

The left knee had a horseshoe shaped laceration from which five linear lacerations ran and overlying which was a bruised area. There was also a superficial contusion below the knee and an abrasion to the back of the left leg. The autopsy also revealed bruising to the knuckles of the left hand.

Appendix K – Blood Pattern Analysis

The bloodstain pattern analysis expert, Sergeant James Gallant, provided an opinion on March 10, 2005, that prior to being shot Mr. St. Arnaud was stationary dripping blood on the snow. According to Sergeant Krebs' notes of his April 26, 2005, meeting with Sergeant Gallant, this passive bleeding could have been up to a minute. When given the time line that fit with the recollections of the witnesses and physical evidence, Sergeant Gallant's opinion, as given in his inquest testimony, changed in that he indicated that the passive bleeding could have been anywhere from 5 to 25 seconds. He noted that Mr. St. Arnaud suffered a head wound shortly before he died as well as other cuts and abrasions, which could have been the source of the blood.⁷⁸ This would mean that Mr. St. Arnaud would have been standing stationary for some period of time within feet of Constable Sheremetta before being shot.

This timeline is inconsistent with the other evidence in that the radio communications indicate that only approx 5-8 seconds passed from when the time Constable Sheremetta radioed that he was chasing Mr. St. Arnaud across the field until the time Mr. St. Arnaud was shot. In that time frame, Mr. St. Arnaud was first running away from Constable Sheremetta, then stopped and came back towards him before being shot. This timeline leaves insufficient time to be standing stationary at the scene of the shooting as suggested by Sergeant Gallant.

Sergeant Gallant's opinion is also inconsistent with the observations of Mr. Klassen and Constable Erickson. Their combined statements describe Mr. St. Arnaud's approach toward Constable Sheremetta in a seamless fashion. Constable Erickson confirmed Constable Sheremetta's observation that Mr. St. Arnaud was constantly moving forward until shot. It is also inconsistent with the timeline established by the radio communications.

Sergeant Gallant's report stated, "The known information at the time was that a male had died as a result of gunshot wounds he had received during the course of an investigation into a Break and Enter into a strip mall." In his response to questions posed by the Commission investigator, Sergeant Gallant stated that he had not been provided with a timeline until shortly before he was to testify at the inquest. However, even after being confronted with this new information, Sergeant Gallant remained steadfast in his opinion that Mr. St. Arnaud had been standing for some time at the position in which he was shot.

Following the inquest, Sergeant Gallant prepared a second report, in which he reached a similar conclusion.

At a later date, Northwest Regional Forensic Identification Section was asked to provide an independent blood stain analysis, as well as to review the original work of Sergeant Gallant. Sergeant Geoff Ellis completed his report on November 14, 2007. Sergeant Ellis worked solely from the same information that had been provided to Sergeant Gallant and without the benefit of having seen Sergeant Gallant's reports. He explained the limits of his analysis and described the negative effects caused by the weather conditions and reliance on photographs, as opposed to attendance on the scene. His conclusion was much more limited, "The bloodstains⁷⁹ on the snow adjacent to the right side of the deceased are consistent with originating from contact between the snow and liquid blood [emphasis in original]." ⁸⁰

The review conducted by the Northwest Regional Forensic Identification Section made some useful observations in relation to the blood stain analysis. Staff Sergeant Jon Forsythe, the NCO in charge of Northwest Regional Forensic Identification Service, and Staff Sergeant Alain Richard, NCO in charge of the Island District Forensic Identification Section, reviewed the reports of both Sergeant Gallant and Sergeant Ellis. They concluded that Sergeant Gallant failed to take into account all of the limiting factors and went beyond the scope of what was scientifically supported and that "[...] his opinions and conclusions are outside the normal standards of RCMP reporting [...]."

The weight to be given to Sergeant Gallant's opinion is negatively impacted by the unsafe assumptions that he made in formulating that opinion. It was further weakened by his reluctance to modify his opinion in light of evidence in relation to the timeline. For these reasons, I attribute no weight to this opinion.

Appendix L – Use of Force Expert Report

In assessing the weight that can be given to this report, I have focussed on the factual foundations upon which Sergeant Chanin based his opinion. Sergeant Chanin prepared a synopsis of the incident, which he used as the basis for his analysis. The early portions of the synopsis are an accurate recounting of events as seen through the eyes of Constable Sheremetta, Constable Erickson and Mr. Thiessen. The synopsis relied only upon the evidence of Constable Sheremetta at the point that he began pursuing Mr. St. Arnaud, except to note that Constable Erickson saw Mr. St. Arnaud "charging" Constable Sheremetta. No mention was made in the synopsis about whether Constable Sheremetta was lying down or standing when he shot Mr. St. Arnaud.

Sergeant Chanin then conducted an analysis of Constable Sheremetta's conduct in attempting to place Mr. St. Arnaud under arrest. He commenced his review by finding that Mr. St. Arnaud's behaviour, "based on the totality of circumstances relevant to Cst. Sheremetta, as presenting a threat of assault with a weapon with the intent to cause death or grievous bodily harm." For this reason Sergeant Chanin found that the appropriate responses were officer presence, verbal intervention, tactical repositioning and lethal force.

After reviewing this report in its entirety, I find that it is flawed in that it lacks any critical assessment of Constable Sheremetta's observations and statements, even where there is clear evidence that these observations were inaccurate or were contradicted by the testimony of others.⁸¹ Absent such an assessment, the report amounts to a review of the events merely as Constable Sheremetta reported them. The crucial point was to arrive at conclusions based on the best evidence as to what actually transpired that night and not merely to assess Constable Sheremetta's version. Accordingly, I provide little weight to this report and will conduct a separate analysis based upon the facts as I have found them.

Appendix M – Firearms Expert Report

On 2005, Civilian Member Earl Hall was asked to prepare a firearms report, specifically to deal with four issues:

1. To determine the mechanical condition of Constable Sheremetta's firearm;
2. To determine whether the three cartridge casings found at the scene of Mr. St. Arnaud's shooting came from Constable Sheremetta's firearm;
3. To determine the location of the cartridge casings ejected from Constable Sheremetta's firearm; and
4. To determine the distance from the muzzle to Mr. St. Arnaud.

The tests results revealed that Constable Sheremetta's firearm was working properly and fired the cartridge casings found at the scene of the shooting.

Testing designed to determine the ejection patterns of the shell casings revealed that shots from a standing position and from a lower shooting position produced distinct patterns. However, environmental conditions, especially the ice and snow, were not factored in during the testing and a relatively small sample size of shots was fired. This testing could not determine from which position Constable Sheremetta shot Mr. St. Arnaud.

The report was able to conclude that the shots were fired from a position of greater than two feet away from Mr. St. Arnaud.

Appendix N – Biomechanics Expert Report

After receiving the blood stain report, the RCMP commissioned a biomechanics report to further clarify the events immediately surrounding Mr. St. Arnaud's death. This report, prepared by Dr. Gail Thornton,⁸² determined Mr. St. Arnaud's gait pattern by reference to the path he took on the roof of the mall, which was established as his method of entry into the pharmacy. The report also clearly set out the assumptions made in its preparation and also listed a significant amount of background material received from the RCMP. This included the statements of both Constable Sheremetta and Constable Erickson. It relied upon photographs taken after the shooting. The report was thorough in describing how it came to its conclusions and I am satisfied that those conclusions should be granted considerable weight.

On the key issue, the report concluded that Mr. St. Arnaud was likely walking and increasing his stride length as he moved toward Constable Sheremetta at the site of the shooting. It estimated that, if Mr. St. Arnaud walked continuously, it would take between 5.7 and 8.4 seconds to travel from the point where he stopped and turned to the point at which he was shot.

Appendix O – Major Case Management Policy

(For information regarding this policy, contact National Contracting Policing Br., Community, Contract and Aboriginal Policing Services Dir. at GroupWise address OPS POLICY HQ.)

25.3. Major Case Management

1. General

1. 1. Major cases are cases/investigations that are serious in nature and because of their complexity, risk, and resources require the application of the principles of Major Case Management (MCM).

1. 2. Major case management is a methodology for managing major cases that provides accountability, clear goals and objectives, planning, allocation of resources and control over the direction, speed and flow of the investigation.

1. 3. Major case management is not a computer software operating system (electronic data processing system) however MCM may use an RCMP approved data base management system, such as PROS, SUPERText, or E & R.

1. 4. Major case management is used to conduct significant investigations regardless of business lines (Contract or Federal). Major RCMP cases will be conducted in accordance with the principles of MCM.

The methodology of MCM encompasses nine essential elements:

• 1. 4. 1. the command triangle,
• 1. 4. 2. management,
• 1. 4. 3. crime-solving strategies,
• 1. 4. 4. leadership and team-building,
• 1. 4. 5. legal implications,
• 1. 4. 6. ethics,
• 1. 4. 7. accountability,
• 1. 4. 8. communication, and
• 1. 4. 9. partnerships.

NOTE:  Guiding principles, additional duties, qualifications and accountability frameworks for all aspects of MCM are outlined in the Major Case Management Manual available at the Canadian Police College.

2. Team Roles/Functions

2. 1. Major Case Management Team

2. 1. 1. Major case management is managed by the Major Case Management Team (MCMT). The MCMT is illustrated by the command triangle. The key roles in this model are the Team Commander, Primary Investigator and the File Coordinator. Although each role has clear accountability paths they maintain a collaborative relationship while maintaining independence in their respective roles.

Text Version

The Major Case Management Team (MCMT) is illustrated by a command triangle. The key role in this model is the Team Commander followed by the Primary Investigator and the File Coordinator who both occupy a secondary role.

2. 2. Team Commander

• 2. 2. 1. The Team Commander (TC) is an accredited individual who has ultimate authority, responsibility/accountability for the MCMT, its resources (human and physical) and its mandate. Accreditation includes successful completion of the Canadian Police College sponsored Major Case Management course.
• 2. 2. 2. Divisions must maintain pools of accredited TCs with current CVs outlining their experience and training in major cases focussing on leadership/managerial accomplishments.
• 2. 2. 3. The TC will ensure qualified File Coordinators (FC) and Primary Investigators (PI) are selected. Although the TC assumes overall control, responsibility and accountability for the direction, speed and flow of the case, he/she may perform other roles subject to the risk and nature of the investigation.

2. 3. Primary Investigator

• 2. 3. 1. The Primary Investigator (PI) controls the direction, speed and flow of the overall investigative process.
• 2. 3. 2. A key role of the PI is to macro-manage, not perform, all aspects related to the investigation and the PI must be prepared to restrict personal participation to the extent necessary to command the overall operation.
• 2. 3. 3. The PI is accountable to the TC and must work in collaboration with the File Coordinator (FC).
• 2. 3. 4. The PI will be an experienced investigator with proven ability to coordinate, organize and control a complex, multi-faceted investigation.

2. 4. File Coordinator

• 2. 4. 1. The FC is responsible for the control, supervision, organization and disclosure of the file documentation. See sec. 8.1
• 2. 4. 2. The FC must identify human and physical resources required to fulfill the role of file coordination. The FC is accountable to the team commander and must work in collaboration with the PI.
• 2. 4. 3. The FC will be a capable, competent investigator with familiarity in the use of both electronically and manually coordinated, organized and controlled data.

2. 5. Major Case Investigative Team

• 2. 5. 1. The Major Case Investigative Team (MCIT) is formed with the exclusive purpose of investigating a major case.
• 2. 5. 2. The MCIT is comprised of investigators (who may be seconded from their primary duties), support staff, and other employees attached to but not part of the major case management team. The MCIT may be comprised of multi-agency personnel.

2. 6. Exhibit Custodian

• 2. 6. 1. The Exhibit Custodian will be selected by and report directly to the Primary Investigator.
• 2. 6. 2. The Exhibit Custodian must coordinate and track the movement of each piece of evidence as prescribed by law.

2. 7. Interviewer

• 2. 7. 1. The PI will select the interviewer or interview team based on the investigative and evidentiary requirements of the case and the individual to be interviewed. The interviewer or interview team reports directly to the PI.
• 2. 7. 2. An interviewer must have the necessary knowledge, skill and ability to perform the required interviewing functions.

3. Division Responsibility

3. 1. The Cr. Ops. Officer is responsible to ensure that all of the principles of MCM are used in the conduct of major cases in their divisions.

4. Front-End Loading

4. 1. The initial phase of a major case investigation (usually the first 72 hours) is critical.

4. 2. Limiting human or material resources in the early stages of a major case investigation may jeopardize the case so every consideration must be given to the front-end loading, i.e. committing the maximum of available resources to a major case investigation.

5. MCM Software

5. 1. Using a data base management system is critical to major case management.

5. 2. A data base management system ensures the basic objectives of major case investigations (documentation and preservation) are met. A system enhances managerial accountability, proper delegation of responsibilities, efficient/effective use of resources, auditable/consistent standards, efficient disclosure and current procedure in the seizure and preservation of evidence.

5. 3. Once an investigation is identified as a major case, an RCMP approved data base management system will be adopted where applicable and available. See sec. 1.3.

6. Critical Incident

6. 1. A critical incident is an event or series of events that by its scope and nature requires a specialized and coordinated response. Critical incidents include, but are not limited to civil unrest, disasters, hostage/barricaded persons, terrorist attacks.

6. 2. During a critical incident, the incident commander has overall responsibility for the critical incident.

6. 3. The MCMT team must be involved as soon as possible and consulted during the decision making processes. The Incident Commander and the MCMT must work together while the incident is ongoing, including sharing all information and intelligence.

6. 4. An Incident Commander should be trained in both incident command and MCM.

6. 5. The CO or Cr. Ops. Officer will determine when a critical incident is concluded and the MCM TC will then assume responsibility. A documented "hand over"of command must be prepared.

7. Media

7. 1. Media Liaison will report directly to the TC and liaise directly with the TC on media enquiries, problems involving media personnel or procedures and developing an evolving media strategy. See OM II.16.

7. 2. All media releases must be approved by the MCMT prior to release.

7. 3. The Media Liaison will ensure a Briefing Note (BN) is submitted to National HQ prior to issuing any significant media release.

8. Disclosure

8. 1. Organization of the file must be implemented early to ensure a thorough and efficient disclosure process. The disclosure process is a critical task and Crown Counsel should be consulted during it's preparation.

8. 2. The management of disclosure is the responsibility of the FC. Crown Counsel has the responsibility to ensure proper disclosure to both the Court and Defence Counsel.

8. 3. The FC must ensure the appropriate number of resources are assigned to disclosure. When appropriate, the FC will appoint dedicated disclosure officers or disclosure teams. A disclosure officer or disclosure team will report directly to the File Coordinator.

9. Decision Making Process

9. 1. Increasingly, lines of authority are being compelled to account for the management process of the investigation of major cases, in both court and/or other judicial hearings.

9. 2. The decision-making processes within MCM must be preserved. Individual managers, supervisors and investigators must make complete notes documenting their participation, rationale, time, direction and decisions.

10. Intelligence Processing/Analysis

10. 1. MCMT should ensure that early consideration is given to intelligence processing and analysis during the course of a major case investigation, in accordance with the Ops. Model.

10. 2. MCMT should consider early assignment of the required resources, in support of the intelligence process.

11. Reporting

11. 1. Regular reporting is a critical component of MCM.

11. 2. The development and monitoring of a reporting system is a division responsibility. Divisions must establish an acceptable reporting structure and frequency schedule.

11. 3. The MCMT must submit timely, regular and comprehensive Briefing Notes (BN) to National HQ in significant/high profile or high-risk incidents.

11. 4. In a JFO, the participating agencies must be included in the reporting structure.

12. Independent Review

12. 1. For quality control purposes divisions must submit major cases to an independent review if an investigation is prolonged, difficult or stalled.

12. 2. An independent review should be conducted by an experienced and accredited major case investigator, not involved in the investigation. The results of the review will be documented and reported to the Cr. Ops. Officer.

12. 3. An independent review will examine:

• 12. 3. 1. implementation of the MCM principles;
• 12. 3. 2. viability of investigative strategy/original operational plan;
• 12. 3. 3. availability of alternative investigative avenues;
• 12. 3. 4. thoroughness of elimination strategy;
• 12. 3. 5. compliance with reporting requirements; and,
• 12. 3. 6. observations and concerns of Critical Incident team members.
• 12. 4. An MCMT will cooperate with and assist in the independent review process.

13. Critical Debriefs

13. 1. All Major Cases should be critically debriefed at the conclusion of the case.

NOTE: If a critical debriefing is conducted while the investigation is ongoing, disclosure must be considered.

13. 2. The resulting analysis of "best practices" and "lessons learned" should be preserved and made available.

14. Canada Labour Code

14. 1. The TC, PI and the FC must be familiar with and comply with their duties as prescribed by Part II of the Canada Labour Code (CLC).

14. 2. The TC must successfully complete the Occupational Health and Safety Course "Managing Safely" available on the University-On Line web-site or CD.

14. 3. Work-related injuries must be reported immediately. Form 3414 will be completed by the individual and submitted to the respective supervisor. The supervisor will complete the form and forward it according to the distribution list. Depending on the severity of the injuries this report must be submitted to Human Resources Development Canada within regulated time limits. Refer to Canada Occupational Health and Safety Regulations, Part XV.

Appendix P – "E" Division Independent Observer Pilot Project

Objective

• To assess the value of the CPC providing competent, professional and timely observations in regards to the impartiality of RCMP investigations where the actions of RCMP members have resulted in serious injury or death, and for other investigations that are high profile and sensitive in nature.
• Within this context it is intended to operate independent of whether the CPC or the RCMP is in receipt of a public complaint related to such investigations.
• This pilot project is established in conjunction with the RCMP's Office of Investigative Standards and Practices (OISP).

Background

• Increasingly, there have been public expressions of concern regarding the police investigating the police. This concern is particularly pronounced in situations where the actions of RCMP members have resulted in serious injury or death, and in other investigations that are high profile and sensitive in nature.
• Public demand for institutional accountability (CPC and RCMP) that is transparent and responsive continues to escalate.
• Institutional credibility, both as it relates to the CPC and the RCMP, is critical in fulfilling respective mandates.
• The CPC is by tradition a complaints driven, reactive review body, but can do much to enhance public confidence in the RCMP's investigative processes where it is positioned to assess, at the outset, the impartiality of the investigation.
• It is thought that the implementation of a pilot project would serve as a basis upon which to evaluate the utility of such a CPC/RCMP Independent Observer Pilot Project.

Description of the Program

• The CPC/RCMP Independent Observer Pilot Project is an initiative undertaken by the CPC and the RCMP with a view to assessing the impartiality of RCMP investigations where the actions of RCMP members have resulted in serious injury or death, and for other investigations that are high profile and sensitive in nature.
• Where it is in the public interest that the impartiality of an RCMP criminal investigation be scrutinized the CPC/RCMP will agree to utilize the pilot project.
• The CPC Independent Observer and the OISP member would be called to an incident as described above.
• Factors used to determine whether or not it is in the public interest include:
  • Whether the incident was related to an RCMP investigation where the actions of RCMP members have resulted in serious injury or death, or where the investigation was high profile and sensitive in nature; and
  • Whether there is the potential for an allegation of such a nature that may give rise to concerns that the public's confidence in the RCMP could be affected.

Program Outline

• Where there is an RCMP investigation into the actions of RCMP members that have resulted in serious injury or death, and for other investigations that are high profile and sensitive in nature, the CPC Independent Observer will assess the impartiality of the RCMP investigation using the following criteria:

1. Line Management: Assess whether there are any actual or perceived conflicts of interests in terms of the members of the investigative team and those who are the subject of the investigations. Determine the appropriateness of the management structure and reporting relationships.
2. Appropriate Level of Response: Assess whether the RCMP investigative team response to the incident is appropriate and proportionate to the gravity of the incident. Has the RCMP assigned the appropriately qualified investigators to the investigative team? Are the team leader(s) and the lead investigator(s) Major Case Management accredited?
3. Timeliness of the Response: Assess whether members of the RCMP investigative team responded in a timely fashion to the incident.
4. Conduct: Assess whether the conduct of members of the RCMP investigative team is consistent with section 37 of the RCMP Act.

Roles and Responsibilities

RCMP

• The RCMP major crimes investigation unit conducts the investigation in the first instance.
• The OISP member contacts the CPC Independent Observer and they attend briefings provided by the MCM Team Leader held within the first twenty-four hours, seventy-two hours, seven days, and then the update briefings held every thirty days thereafter.
• The OISP will provide oversight of the competency and adequacy of the RCMP investigation.
• The RCMP, through the OISP, provides unfettered access to all aspects of the investigation, including but not limited to access to the operational file and transcripts of witness interviews. It is understood that the CPC Independent Observer would not have access to "holdback evidence" in an ongoing investigation nor would the CPC Independent Observer be present during any witness or suspect interviews.

CPC

• The CPC Independent Observer, with the OISP member attends the commencement of a criminal investigation and receives case briefings within the first twenty-four hours, seventy-two hours, seven days and every thirty days thereafter.
• The CPC Independent Observer will liaise with the OISP member and have the ability to make recommendations to the OISP member, as a representative of the RCMP, on issues relating to the impartiality of the investigation.
• The CPC Independent Observer is to observe, listen and assess the impartiality of the investigation.
• The CPC Independent Observer does not provide advice, direct or actively participate in any part of the investigative process.
• Upon completion of the assessment, the CPC Independent Observer reports, confidentially, to the Chair of the Commission the findings with respect to questions of impartiality.
• The Chair of the Commission (as appropriate) reports, confidentially, to the RCMP the findings of the CPC Independent Observer.
• The CPC will provide the CPC Independent Observer and pay all expenses related to that role.

Skills and Training for the Independent Observer

• A CPC Independent Observer's background should include legal training or a university degree in the field of criminal justice, criminology, policing, combined with significant exposure to policing practices, and significant experience in the area of public complaints as they relate to the policing function.
• Exposure to RCMP or other police investigative courses, including Major Case Management, would be an asset.

Governance Structure for the Pilot Project

• The Chair of the Commission and the Deputy Commissioner of "E" Division, or their respective designates, will conduct ongoing assessment of the CPC/RCMP Independent Observer Pilot Project and will meet as required during the course of the project.
• The day to day, ongoing management of this project will be co-lead by the Director General of Reviews and Investigations and the RCMP member responsible for the OISP.
• Any decisions relating to the substantive modification of the CPC/RCMP Independent Observer Pilot Project will be jointly taken by the Chair of the Commission and the Deputy Commissioner of "E" Division.

Evaluation

• The CPC/RCMP Independent Observer Pilot Project will commence April 1, 2007 with a joint review to take place at the end of the first year.
• Recommendations will be prepared and forwarded to the CPC Chair and the Deputy Commissioner of "E" Division for their joint consideration.

Media/Communications

• When an investigation is initiated pursuant to the CPC/RCMP Independent Observer Pilot Project, the CPC and RCMP will issue a joint media release advising that such an investigation has been launched.

Appendix Q – Condensed Timeline of Events Related to Investigation

Appendix R – Graphical Model of the IM/IM

Text Version

68 Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10.

69 Hearsay evidence is testimony from one witness about what another person said. Hearsay evidence is generally inadmissible unless it falls within one of the many exceptions that provides for admissibility. See Black's Law Dictionary.

70 See D.M. Paciocco and L. Stuesser, The Law of Evidence, Fourth Edition (2005), Chapter 5, Hearsay Exceptions, 10. Spontaneous Statements (Res Gestae).

71 Ratten v. R., [1971] 3 All E.R. 801 at 807 (P.C.).

72 Although there are no reported criminal court cases dealing with the "duty to account," in general, compelled statements are not admissible in criminal court proceedings. See R. v. White, [1999] 2 S.C.R. 417.

73 See section 40 of the RCMP Regulations, 1988 (SOR/88-361).

74 The investigative team identified this statement as having been given to Constable Sheremetta's counsel on December 21, 2004. However, Sergeant Krebs' notes for December 22, 2004 indicate that he spoke with Constable Sheremetta's lawyer, Mr.  Brian Gilson, who advised him that he was in the process of obtaining a full statement from Constable Sheremetta. A number of attempts were made by Sergeant Krebs to obtain a copy of the statement over the following months. On March 2, 2005, Sergeant Krebs noted that Mr. Gilson contacted him to advise that he had Constable Sheremetta's statement at his office ready for pick-up and it was only on this date that it was turned over to the investigative team. For the purposes of this analysis, I find that this statement was not made contemporaneous to the events under investigation and that it should be characterized as being made on March 2, 2005.

75 This information may have been passed on by Corporal MacLellan during his December 20, 2004 meeting with Constable Sheremetta during which he asked the Constable if he was sure about Mr. St. Arnaud having jumped off of the roof.

76 This is the disciplinary regime set forth in Part IV of the RCMP Act.

77 The order was the order at which Dr. McNaughton examined them and is not related to the order in which the shots were fired. Dr. McNaughton testified at the inquest that in his opinion all of the shots were fired at about the same time but he did not know the sequence.

78 These injuries were likely caused during Mr. St. Arnaud's entry into the pharmacy, which is where his blood trail began.

79 Sergeant Ellis noted that his analysis was based on the assumption that the stains adjacent to Mr. St. Arnaud were his blood. This assumption was made because no samples of the blood were taken.

80 Based upon Sergeant Ellis' report the Toronto Police Service review theorized that the blood from Mr. St. Arnaud might have occurred if he originally fell on his right side, where he was cut, and was later moved onto his left side. That review recommended resubmitting the scenario to a blood stain analyst. However, there is no evidence to support that this was done.

81 This approach differed from that later used by the Toronto Police Service, which assessed the evidence and provided opinions after discounting some of Constable Sheremetta's evidence.

82 Dr. Thornton's curriculum vitae demonstrated a strong academic record relevant to the rendering of her opinion in this case.