ARCHIVED - Chair's Final Report After Commissioner's Notice – Report Following a Public Interest Investigation into a Chair-Initiated Complaint Respecting the Use of a Conducted Energy Weapon in Inuvik, Northwest Territories

The Complaint

On March 13, 2007, Constable Noella Cockney of the Inuvik RCMP Detachment located in the Northwest Territories, attended the Arctic Tern Youth Facility (the "Facility") in response to a call from Facility staff for assistance in dealing with a female inmate, X.^{Footnote 1} Upon her arrival at the Facility, Constable Cockney was directed to a classroom where youth officers had used force to take X to the ground. When Constable Cockney entered the room there were five youth officers present, three of whom had hands-on control of X. X was lying face down with her hands cuffed behind her back. Prior to Constable Cockney's arrival, the youth officers had told X that they wanted her to proceed to the segregation area but she refused to cooperate. X swore at them and at Constable Cockney and told them she would not go to segregation.

Constable Cockney warned X three or more times that if she did not comply with the direction to proceed to the segregation area Constable Cockney would use a conducted energy weapon (CEW)^{Footnote 2} which would apply 50,000 volts of electricity. X repeatedly stated that she would not cooperate, continued to swear at Constable Cockney and told her to go ahead and use the CEW. Finally, Constable Cockney deployed the CEW for a full five-second cycle. X yelled out, "okay, okay, okay" and after the cycle was complete cooperated in being led to the segregation area.

On April 5, 2007, X's mother sent a letter to the Facility manager complaining about X's treatment at the hands of the youth officers and the RCMP member. With respect to Constable Cockney, X's mother questioned why the CEW was used against her daughter when she was handcuffed and restrained and why Constable Cockney entered the Facility with her firearm. This letter was copied to the RCMP. As a result, a meeting was scheduled between Corporal Jim Strowbridge and X's mother for April 23, 2007. At that time, Corporal Strowbridge sought to elicit more information about X's mother's complaint and to have her sign the complaint form. She declined to do so until such time as she had been given an opportunity to speak with Constable Cockney.

Corporal Strowbridge forwarded the complaint to Staff Sergeant Sid Gray, the then Inuvik Detachment Commander, for follow-up. Staff Sergeant Gray directed Constable Cockney to arrange for a meeting with X's mother. Although at least one meeting was scheduled, it did not take place, as X's mother was unable to attend.

In August of 2007 the matter was raised again after the RCMP received an inquiry from the territorial Minister of Justice as to "the status of any investigation into the use of force" by Constable Cockney. It was determined that no investigation had been undertaken and Staff Sergeant (as he then was) John Milner, the District Advisory Non-Commissioned Officer, was tasked with reviewing the matter. In December 2007 Staff Sergeant Milner prepared a review of the incident which supported Constable Cockney's use of the CEW and which found her entry into the facility with all of her intervention equipment, including her firearm, to be prudent. Staff Sergeant Milner attempted to meet with X's mother to explain his findings but on the advice of counsel she declined. It was only after this failed attempt to resolve the matter that the criminal investigation commenced.

In February 2008 Constable Kevin Charles was directed to commence a statutory ("criminal") investigation into the incident and after interviewing the various witnesses prepared an investigation report that was sent to Crown counsel for review. In May 2008 Crown counsel rendered an opinion that there was no reasonable prospect of conviction based upon the evidence reviewed and recommended that no charges be laid against Constable Cockney.

On November 28, 2008, as the Chair of the Commission, I initiated a complaint, and public interest investigation pursuant to subsections 45.37(1) and 45.43(1) of the RCMP Act,respectively, in which I raised four issues: Firstly, whether members of the RCMP involved in the incident complied with all appropriate policies, procedures, guidelines and statutory requirements; secondly, whether existing policies, procedures and guidelines were adequate; thirdly, whether members involved in the investigation of the incident conducted the investigation free from any real or perceived bias and in a timely and adequate manner; and lastly, whether the existing policies relating to investigations in which RCMP members investigate fellow RCMP members are adequate to ensure fair, effective, thorough and impartial investigations.

Finally, in December 2008, Staff Sergeant Milner wrote to X's mother advising that Crown counsel had recommended against laying charges.

The Commission's Public Interest Investigation Report

The Commission appointed a former senior non-RCMP police officer as the public complaint investigator. The investigation took slightly more than three months to complete and was thereafter reviewed by the Commission Chair. On September 23, 2009, the Commission issued a Report Following a Public Interest Investigation into a Chair-Initiated Complaint (Appendix A) which contained specific findings and recommendations set forth at the conclusion of this report. The following summary encapsulates the thrust of the Commission's findings.

With respect to assessing the reasonableness of constable Cockney's use of the CEW in the circumstances of this case:

• Constable Cockney was not qualified to deploy a CEW.
• Constable Cockney deployed the CEW against X when it was unreasonable to do so.

With respect to the RCMP's handling of X's mother's complaint:

• The RCMP's handling of X's mother's complaint was deficient in its management, timeliness and the adequacy of the investigation, such that it leads to a strong perception of bias.

The Commission made fourteen recommendations ranging from individual remedial measures to address the specific members involved in both the incident and the subsequent investigation of the incident through to broader policy and procedural enhancements to address deficiencies at the detachment, divisional and national level.

The Commission's review revealed that many of the identified deficiencies paralleled the systemic concerns addressed in broad-scale analyses of RCMP processes, policies and conduct recently undertaken by the Commission and published on the Commission's website. Specifically, the rationale for the use of the CEW as articulated by both Constable Cockney and Staff Sergeant Milner, seemed to confirm the conclusions made in the Commission's Final Report on the RCMP Use of the Conducted Energy Weapon (CEW).^{Footnote 3} Most important among those conclusions, as they relate to this case, was the need for the RCMP to clarify to its members and to the public when it is permissible to deploy the CEW.

Additionally, the RCMP's initial handling of X's mother's public complaint into the incident, including the attempts to informally resolve the complaint and the failure to properly document it were contrary to RCMP policy and trends identified in the Commission's Review of the RCMP's Complaint Records.^{Footnote 4} The lack of follow-up and the unacceptable delays in responding to the complaint actually exceeded the averages calculated in that Review. These factors appear to be more prevalent in northern communities and suggest that a review of these remote RCMP detachments may be in order.

Finally, the investigative deficiencies and the RCMP response to the public complaint filed by X's mother were significant enough to leave a strong perception of bias and to call into question the ability of the RCMP to investigate its own members in cases in which serious allegations of misconduct exist. These issues were dealt with in greater detail in the Commission's report on the police investigating the police.^{Footnote 5} Specifically, the following institutional issues raised in that report were evident in the present case:

• The RCMP's approach to internal investigations is flawed and inconsistent.
• No national 'gold standard' exists for internal investigations.

It should be noted that that report dealt with police investigating police from the same force on cases involving death, serious injury or sexual assault. The Commission's determination that those types of investigations do not engender confidence in the transparency and integrity of those investigations nor their outcome applies equally to cases such as this, cases in which the conduct in issue is sensitive in nature and naturally attracts public attention.

The RCMP has reached a crossroads in its development as a policing agency. How it responds to the challenges to its reputation as a world renowned agency will be determined not by statements confirming an understanding that these challenges exist but by embracing a philosophy of change and by making a concerted effort to implement that philosophy. The goals of such action will be not only to reduce instances of misconduct but to implement a robust system of oversight which inspires public confidence.

The RCMP Commissioner's Notice

Pursuant to subsection 45.46(2) of the RCMP Act, the Commissioner is required to provide written notification of any further action that has been or will be taken in light of the findings and recommendations contained in the Interim Report.

On December 9, 2009, the Commission received the RCMP Commissioner's Notice (Appendix B). I have reviewed the Commissioner's response and note that the Commissioner is in agreement with almost all of my findings and recommendations. In many cases he averred that responses to the recommendations were already underway or had been completed. However, I do have some observations and points of clarification.
First, while the Commissioner suggested that my finding that Constable Cockney's certification to use the CEW had expired the month prior to the incident, the evidence before me was that her certification had lapsed thirteen months before the incident in question and not merely a few weeks prior.

Also, the Commissioner agreed with my second recommendation that the RCMP should take all reasonable steps to restrict access to the CEW except to qualified trainers and users as well as trainees under supervision. The Commissioner pointed to the improvements to the RCMP's CEW policy. In addition to policy considerations, I should note that this recommendation was designed to include physical restrictions to the access of CEWs (for example, implementing a swipe card lock system which would restrict access only to certified CEW users or trainers). This is particularly critical considering that the CEW is a firearm pursuant to the regulations under the Criminal Code of Canada.^{Footnote 6}

Third, my eighth recommendation stated that the RCMP should conduct a review of the handling of public complaints in the Inuvik RCMP Detachment, which should include steps to identify cases which have not been properly recorded as such or have otherwise not been handled appropriately. The Commissioner agreed "that further steps were required to re-enforce the proper handling of public complaints." He stated that this had already taken place and added that regional and national units were in place to monitor public complaints at the division level.

The purpose of my recommendation was to ensure that this issue was addressed at the detachment level. The material provided to me in the course of my review led me to believe that there was a systemic dysfunction within the detachment which would not be readily apparent to the units that would normally monitor the public complaint process. The facts of this case point to a detachment level response which would have diverted a legitimate public complaint from the normal monitoring stream and would have left no written record to be monitored.

Fourth, I am encouraged to see that the RCMP is currently reviewing its policies in handling public complaints which will eventually include training wells for RCMP supervisors. Given the decentralized manner in which public complaints are handled by the RCMP, this training is timely and critical to ensure the integrity of the public complaint process.

Fifth, the Commissioner disagreed with my recommendation that the RCMP provide all members of the RCMP with refresher training on the importance and proper maintenance of members' notebooks. He attributed the failures in this regard to supervisory issues as opposed to training issues. He further indicated that quality assurance measures are in place. I note, however, that the failures in note-taking were also made by the supervisors involved in this file and given the history of member deficits in this area, I remain convinced that additional training would benefit the detachment.

Lastly, the Commissioner disagreed with my fourteenth recommendation that the National Use of Force Coordinator should conduct an audit of all "G" Division detachments to assess compliance with the maintenance of CEW control logs during the period from April 1, 2007 to March 31, 2009 and report the results of that audit to the Commission and the Divisional Use of Force Coordinator. He noted that "G" Division did not implement mandatory use of CEW logs until April 2009 and that it is therefore not possible to conduct a review of the time period cited in my recommendation. He also noted that compliance monitoring would take place in future.

It is not clear to me whether this means that no detachments were maintaining CEW logs. If any were, the proposed audit would still be of benefit to assess the practices of those detachments which were maintaining a CEW log and should still be considered.

The manner in which the RCMP has exercised control over the use of the CEW is a critical issue because the maintenance of control logs has been prescribed since 2001 and forms a key factor in the RCMP's governance of the CEW. By virtue of the fact that the CEW is a firearm there is an enhanced need to ensure strict compliance with the applicable rules and guidelines. The deficiencies noted in this case are not isolated and over the years have been identified by the Commission in other reviews originating from other divisions.
It should also be noted that the failures of governance were not solely limited to the lack of maintenance in relation to CEW logs. This case also demonstrated that the RCMP failed to regulate access to CEWs and was deficient in monitoring the proper use CEWs. I again stress the dangers inherent to such a weak approach to the regulation of a firearm.

The Commissioner's response raises another concern. It would appear that notwithstanding clear national RCMP policy requiring the maintenance of CEW logs, the division did not consider itself bound to apply such policy. This was a requirement from which the divisions ought not to have authority to disregard. Accordingly, I find it necessary to make a fifteenth recommendation which is found below.

Summary of Commission's Findings and Recommendations

Finding No. 1: Constable Cockney was not qualified to deploy a CEW and her use of the CEW in the case under review breached RCMP policy.

Recommendation No. 1: The National Use of Force Coordinator should review the use of the CEW within "G" Division for compliance with policy which restricts use of the CEW to certified members, and provide the Commission and the Minister with a report thereon.

Recommendation No. 2: The RCMP should take all reasonable steps to restrict access to the CEW except to qualified trainers and users as well as trainees under supervision.

Finding No. 2: Constable Cockney failed to make adequate notebook entries as required by RCMP policy.

Finding No. 3: Constable Cockney failed to provide sufficient detail in the occurrence or CEW usage reports to justify her use of force.

Finding No. 4: The electronic versions of the occurrence report and the CEW usage report available at the time of the incident failed to identify when the documents were created or amended or by whom.

Recommendation No. 3: The RCMP should provide Constable Cockney with operational guidance in the requirements for proper note-taking and proper reporting techniques.

Recommendation No. 4: For a period of six months, or such longer period as may be necessary to ensure compliance, the RCMP should monitor Constable Cockney's performance in relation to the preparation of written records and notes.

Recommendation No. 5: The RCMP should ensure that all forms, whether completed by hand or electronically, contain the dates and times of creation and amendment as well as by whom these actions were taken.

Finding No. 5: Constable Cockney failed to adequately conduct a risk assessment after arriving on the scene.

Finding No. 6: Constable Cockney failed to adequately consider other available options prior to deploying the CEW.

Finding No. 7: Constable Cockney deployed the CEW against X when it was unnecessary to do so.

Finding No. 8: The Inuvik RCMP Detachment failed to have an operational plan in place for responding to calls for service at the Facility.

Recommendation No. 6: The Inuvik RCMP Detachment should consult with the Facility and work toward creating an operational plan for responding to calls at the Facility.

Recommendation No. 7: The RCMP should create policy, procedures or guidelines to ensure that operational plans are in place with respect to custodial facilities routinely serviced by the Force.

Finding No. 9: The Inuvik RCMP Detachment improperly attempted to informally dispose of X's mother's public complaint.

Finding No. 10: The Inuvik RCMP Detachment failed to adhere to the statutory requirements to maintain a record of X's mother's public complaint.

Finding No. 11: The Inuvik RCMP Detachment failed to oversee the RCMP response to X's mother's public complaint resulting in significant and unnecessary delay.

Recommendation No. 8: The RCMP should conduct a review of the handling of public complaints in the Inuvik RCMP Detachment, which should include steps to identify cases which have not been properly recorded as such or have otherwise not been handled appropriately.

Recommendation No. 9: The RCMP should establish national training for detachment commanders, unit commanders and other members administrating the public complaint process.

Finding No. 12: Staff Sergeant Milner failed to act upon X's mother's public complaint in a timely fashion.

Finding No. 13: The delays in the conduct of the RCMP investigation resulted in the destruction of potential evidence.

Finding No. 14: Staff Sergeant Milner engaged in speculation and relied upon irrelevant considerations in reaching the conclusions in his report.

Finding No. 15: Staff Sergeant Milner's December 10, 2007 report was biased in favour of Constable Cockney.

Finding No. 16: Staff Sergeant Milner improperly attempted to informally dispose of X's mother's public complaint and thereby forestall the criminal investigation.

Finding No. 17: Constable Charles' investigation report selectively reported evidence leading to the perception of bias.

Finding No. 18: Staff Sergeant Milner's use of force report selectively reported evidence leading to the perception of bias.

Finding No. 19: The RCMP's response to X's mother's complaint was unreasonably delayed.

Finding No. 20: Staff Sergeant Milner failed to adequately address X's mother's complaint.

Finding No. 21: The RCMP's handling of X's mother's complaint was deficient in its management, timeliness and the adequacy of the investigation, such that it leads to a strong perception of bias.

Finding No. 22: Staff Sergeant Milner was in a conflict of interest when assessing Constable Cockney's conduct.

Recommendation No. 10: The RCMP should create clear policy and/or investigative guidelines to prevent conflicts of interest from arising during internal investigations.

Finding No. 23: Constable Cockney, Constable Charles, Corporal Strowbridge and Staff Sergeant Milner failed to maintain adequate notebooks.

Recommendation No. 11: The RCMP should conduct an audit of "G" Division to assess compliance with the RCMP policy provisions relating to the maintenance of notebooks during the period from April 1, 2007 to March 31, 2009 and report the results of that audit to the Commission.

Recommendation No. 12: The RCMP should provide Constable Cockney, Constable Charles, Corporal Strowbridge and Staff Sergeant Milner with operational guidance on the importance and proper maintenance of members' notebooks.

Recommendation No. 13: The RCMP should provide all members of the Inuvik RCMP Detachment with refresher training on the importance and proper maintenance of members' notebooks.

Finding No. 24: In breach of RCMP national policy, the Inuvik RCMP Detachment failed to maintain CEW control logs.

Recommendation No. 14: The National Use of Force Coordinator should conduct an audit of all "G" Division detachments to assess compliance with the maintenance of CEW control logs during the period from April 1, 2007 to March 31, 2009 and report the results of that audit to the Commission and the Divisional Use of Force Coordinator.

Supplementary Recommendation

Recommendation No. 15: The RCMP verify that all divisions are following national RCMP policy governing the maintenance of CEW log books and direct any divisions not currently in compliance to apply the policy forthwith. The results of this process should be provided to the Commission and the Minister within 60 days of the date of this Report.

Pursuant to subsection 45.46(3) of the RCMP Act, I respectfully submit my Final Report and, accordingly, the Commission's mandate in this matter is ended.

___________________________________
Paul E. Kennedy
Chair

Appendix A: Interim Report Submitted to RCMP on September 23, 2009

Interim Report Following a Public Interest Investigation into a Chair-Initiated Complaint Respecting the Use of a Conducted Energy Weapon in Inuvik, Northwest Territories

Appendix B: RCMP Commissioner's Notice

December 9, 2009

Mr. Paul E. Kennedy
Chair
Commission for Public Complaints
Against the RCMP
P.O. Box 1722, Station "B"
Ottawa, Ontario
K1P 0B3

Dear Mr. Kennedy:

I acknowledge receipt of your interim report dated September 23, 2009, and materials relevant to your Chair Initiated Complaint and Public Interest Investigation respecting the Use of a Conducted Energy Weapon (CEW) in Inuvik, Northwest Territories, file reference PC-2008-3149.

I have completed a review of this matter including the findings and recommendations set out in your interim report. This notice is provided pursuant to subsection 45.46(2) of the Royal Canadian Mounted Police Act.

With respect to your first finding, I generally agree but suggest it would be more accurate to state that Constable Cockney's certification had expired the month previous to the incident and her use of a CEW on March 13, 2007 breached RCMP policy. As for your first recommendation, I agree that a review should be conducted on the use of CEWs in "G" Division and steps be taken to ensure compliance with the RCMP's current requirements for annual CEW re-certification, a more stringent requirement than that in place at the time of this incident. The results of that review will be conveyed to the Commission and the Minister.

I agree with your second recommendation. Since this incident, there have been significant improvements in our CEW policies following a full review of our previous policies. I am satisfied that measures, including requirements relating to CEW Control logs, are in place to address this recommendation.

I agree with your second finding that Constable Cockney failed to make adequate notebook entries as required by RCMP policy.

I agree with your third finding that Constable Cockney failed to provide sufficient detail in the occurrence or CEW usage reports to justify her use of force.

I agree with your third recommendation and will direct that Constable Cockney be provided with operational guidance on the requirements for proper note-taking and reporting techniques.

I agree with your fourth recommendation and will direct the Commanding Officer of "G" Division to ensure monitoring takes place as you have recommended.

I agree with your fifth recommendation and confirm that the RCMP is in the process of amending electronic forms/reports to incorporate date and time references.

I agree with your fifth finding that Constable Cockney failed to adequately conduct a risk assessment after arriving on the scene.

I agree with your sixth finding that Constable Cockney failed to adequately consider other available options prior to deploying the CEW.

I agree with your seventh finding that Constable Cockney deployed the CEW against X when it was unnecessary to do so.

I agree with your eighth finding but believe it more appropriate for the Inuvik Detachment to have in place "unit supplements" to guide interventions at the Arctic Tern Facility.

I agree with your recommendations six and seven and would like to inform you that there is a unit supplement being developed in cooperation with the Warden of the Arctic Tern Facility.

I agree with your ninth finding that the lnuvik RCMP Detachment improperly attempted to informally dispose of X's mother's public complaint.

I agree with your tenth finding that the lnuvik RCMP Detachment failed to adhere to the statutory requirements to maintain a record of X's mother's public complaint.

I agree with your eleventh finding that the Inuvik RCMP Detachment failed to oversee the RCMP response to X's mother's public complaint resulting in significant and unnecessary delay.

I agree that further steps were required to re-enforce the proper handling of public complaints. This has already taken place. I am also satisfied that there is an appropriate ongoing process in place to monitor the handling of public complaints at the division level via North West Region Professional Standards and the National Public Complaints Unit at National Headquarters.

I agree with your ninth recommendation. The RCMP is currently reviewing its National Public Complaints policies to include recent improvements to the public complaints process developed with the CPC over the last year. This includes a full review of the RCMP's National Public Complaints Guide to assist managers, investigators and other members involved in the administration of public complaints and the development of training wells to be incorporated in the 2010 Supervisor Development Program on the handling of public complaints and internal investigations.

I agree with your twelfth finding that Staff Sergeant Milner failed to act upon X's mother's public complaint in a timely fashion.

I agree with your thirteenth finding that the delays in the conduct of the RCMP investigation resulted in the destruction of potential evidence.

I agree with your fourteenth finding that Staff Sergeant Milner engaged in speculation and relied upon irrelevant considerations in reaching the conclusions in his report.

I agree with your fifteenth finding that Staff Sergeant Milner's December 10, 2007 report was biased in favour of Constable Cockney.

I agree with your sixteenth finding that Staff Sergeant Milner improperly attempted to informally dispose of X's mother's public complaint and thereby forestall the criminal investigation.

I agree with your seventeenth finding that Constable Charles' investigation report selectively reported evidence leading to the perception of bias.

I agree with your eighteenth finding that Staff Sergeant Milner's use of force report selectively reported evidence leading to the perception of bias.

I agree with your nineteenth finding that the RCMP's response to X's mother's complaint was unreasonably delayed.

I agree with your twentieth finding that Staff Sergeant Milner failed to adequately address X's mother's complaint.

I agree with your twenty-first finding that the RCMP's handling of X's mother's complaint was deficient in its management, timeliness and the adequacy of the investigation, such that it leads to a strong perception of bias.

I agree with your twenty-second finding that Staff Sergeant Milner was in a conflict of interest when assessing Constable Cockney's conduct.

I agree with your tenth recommendation. The RCMP is implementing policy on External lnvestigations or Reviews, including formal requirements to address issues of real or perceived conflicts of interests. I believe you have already been provided with a draft of this policy and the final policy will be provided to you shortly.

I agree with your twenty-third finding that Constable Cockney, Constable Charles, Corporal Strowbridge and Staff Sergeant Milner failed to maintain adequate notebooks.

Although we do not think an audit is required we do agree, as called for in your eleventh recommendation, that steps be taken to improve the quality of notebooks of members in "G" Division and ensure compliance with policy. This work is well underway. We are satisfied that proper quality assurance processes are now in place. Since 2007, "G" Division has conducted Managerial Reviews on 15 of 22 detachments and an additional 3 units within "G" Div. Headquarters. Managerial Reviews of the remaining 7 detachments in the division are planned to take place over the course of the next year. For the current fiscal year, lnuvik Detachment has a scheduled Unit Level Quality Assurance for notebooks.

I agree with your twelfth recommendation and will direct that Constable Charles, Corporal Strowbridge and Staff Sergeant Milner be provided with operational guidance on the importance of proper maintenance of members notebooks. As for Constable Cockney, I am satisfied that this will be covered under our actions in response to your recommendation No. 3.

I disagree with the specific action suggested by your thirteenth recommendation as I do not believe that the significant shortcomings in this case are in relation to training. In my view they are more of a supervisory issue. As mentioned above, this matter has been addressed and I am satisfied that appropriate quality assurance measures are in place.

I agree with your twenty-fourth finding that, in breach of RCMP national policy, the Inuvik RCMP Detachment failed to maintain CEW control logs.

I disagree with the specifics of your fourteenth recommendation. In "G" Division, the implementation of the mandatory use of CEW logs has only been in place since April 2009. Therefore it is not possible to conduct an historical review covering a period prior to this date. Steps will be taken, however, to monitor compliance with the requirements we have implemented in relation to CEW control logs.

Obviously your report identifies a number of significant failures on the part of the RCMP and the members involved in this matter. In addition to the specific actions outlined above, I will discuss the report and your findings and recommendations with my Senior Executive Committee and the Commanding Officer of "G" Division.

I look forward to receiving your final report in this matter.

Yours sincerely,

William J.S. Elliott