Chair-Initiated Complaint Regarding the In-Custody Death of Mr. Raymond Silverfox

Booking into RCMP cells

Mr. Silverfox was booked into Cell 3, colloquially known as one of two "drunk tanks" at the Whitehorse RCMP Detachment, at 5:13 a.m. The members did not take a breath sample with an alcohol screening device (ASD), as Mr. Silverfox had just been examined by EMS and cleared for incarceration. Mr. Silverfox was lodged in the cell, which was occupied by two other men. Mr. Silverfox's interaction with Constable Van Marck and Constable Bulford was cooperative, and he responded to their questions appropriately.

Constable Bulford stated that he did not use the ASD in respect of Mr. Silverfox because he had already been cleared by EMS. Constable Bulford elaborated that ASD readings are done for the safety of prisoners, and in this case, he had already been dealt with by emergency medical staff and there were consequently no safety concerns. Constable Van Marck agreed that there was no need to administer the ASD, as Mr. Silverfox had already been assessed by EMS.

In recognition of the issues that may arise from acute intoxication, the Whitehorse RCMP Detachment policy in effect at the time of this incident read as follows:

19.2.1.1 As part of the booking in process, all prisoners suspected of being under the influence of alcohol shall be asked to provide a breath sample in the (digital) approved screening device.

19.2.1.2 A prisoner with a BAC of 350 mg % or greater shall be taken to Whitehorse General Hospital for examination/treatment before being lodged in cells.

Constable Van Marck and Constable Bulford stated that they did not believe they needed to follow the policy in this instance, as Mr. Silverfox had been medically cleared for incarceration by the EMS personnel. However, it is of note that the policy is prescriptive in terms of the needs to administer the ASD; it does not provide an exception for circumstances in which an individual has been seen by medical personnel. Nonetheless, it may have been reasonable for the members to decide, given the short time between the medical examination and Mr. Silverfox's incarceration, that it would not serve any useful purpose to readminister a BAC test since one had already been performed.

Despite the foregoing, there is no evidence suggesting that the EMS personnel checked Mr. Silverfox's BAC: it was neither noted on Mr. Silverfox's medical reports nor raised by Ms. Smith and Mr. McCann in their statements. Accordingly, there does not appear to have been any basis on which the members could reasonably rely on the medical assessment in the matter of Mr. Silverfox's BAC as opposed to complying with the existing detachment policy.

Inspector Wharton indicated that he had implemented a recommendation stemming from the administrative review of this incident that required that he ensure compliance with the policy. He also indicated that he had reviewed the relevant policy and added clauses requiring members to consider all circumstances and indications of impairment and consider medical attention even if a prisoner's BAC did not exceed 350 mg per 100 mL of blood according to the ASD.

Members booking prisoners into cells are also responsible for noting the individual's level of responsiveness. The relevant RCMP national operational policy stated:

19.2.3.8 Assessing prisoner responsiveness results must be noted on form C-13-1 before lodging the person in a cell and regularly thereafter by the guard on duty until release.

19.3.2.2 You must assess prisoner responsiveness and note the information on form C-13-1 before lodging the person in a cell. Instruct the guard on duty to assess responsiveness regularly and document the results in the prisoner log record book.

Although Constable Van Marck was noted to be the "investigator" on the Prisoner Report, Constable Bulford in fact completed the report. Constable Bulford noted on the report that he had checked Mr. Silverfox's responsiveness, and it is apparent on the cell block video that Mr. Silverfox was responding to questions and the members' instructions during the booking process. Constable Bulford noted on the Prisoner Screening section of the Prisoner Report that Mr. Silverfox's breath had a strong odour of liquor, that he was vomiting and fumbling, that he was wobbling and sagging, that his speech was confused, that he was sleepy, and that he was placid in demeanour. Under "illnesses/medications," he wrote, "none noted." Given the information noted on the Prisoner Report completed during booking, I am satisfied that Constable Bulford adequately assessed Mr. Silverfox's responsiveness and completed the relevant section of the Prisoner Report as required.

Craig MacLellan's guard shift

Craig MacLellan was the guard on duty at the time that Mr. Silverfox was booked into cells. Guards and matrons at the Whitehorse RCMP Detachment are employees of the Canadian Corps of Commissionaires, the RCMP Guard Program Coordinator for which is Mr. Harry Elliott. Constable Paul Brisley and Constable Jeff Kalles were the designated Guard coordinators for the Whitehorse Detachment. The guard training, delivered by Mr. Elliott, was consistent with the RCMP's Course Training Standard (CTS) for guards.

Essentially, RCMP policy requires guards and matrons to have up-to-date CPR and basic first aid certification, and to take an annual recertification course every year once they have completed their initial training.^{Footnote 2} Craig MacLellan possessed current CPR and basic first aid certification, and had taken his guard training course on June 24, 2008. His training was complete and up to date.

During the booking-in process, Craig MacLellan remembered Mr. Silverfox being reasonable and cooperative, although "pretty drunk." He described him as "pretty drunk" in that he was shuffling and seemed unsteady, but "not too bad." Craig MacLellan stated, "[...] it almost seemed just a, another, another drunk really [...] like I mean I've dealt with hundreds of them probably eh so." He remarked that Mr. Silverfox had urinated on himself, but did not recall Constable Van Marck or Constable Bulford giving him any information about Mr. Silverfox, apart from the fact that he may have defecated in his pants.

RCMP national operational policy requires that persons having been certified fit for incarceration be placed in their cells in a recovery position, with their faces in plain view, "[w]hen appropriate and possible."^{Footnote 3} This was not done, as Mr. Silverfox was simply admitted to the cell and left to position himself. However, Mr. Silverfox was walking by himself at that point, and it is clear from the cell block video that he was able to enter the cell, where he interacted briefly with its other occupants and proceeded to lower himself to the ground. As that was the case, and the members had observed Mr. Silverfox's ability to both walk and speak at that point despite his obvious indications of impairment, it was not necessary or appropriate to intervene to place him in the recovery position.

Although Craig MacLellan did not do a physical check of Mr. Silverfox until 7:05 a.m., he took note of some of his actions by way of the detachment's closed-circuit video and recorded them in the cell log book. He saw Mr. Silverfox tossing and turning and believed that it was likely due to his intoxication. He also noted Mr. Silverfox dry heaving, although he did not vomit.

One of the individuals lodged with Mr. Silverfox stated:

Raymond SILVERFOX was fucking hyperventilating pretty bad. He couldn't stop getting sick and he shit his pants and pissed his pants and he couldn't stop puking. It was pretty obvious he needed help but they didn't, they didn't do nothing about it.

He also remarked Mr. Silverfox dry heaving after he had vomited. He indicated that Mr. Silverfox was too sick to talk to him or to the cell's other occupant. That individual concurred that Mr. Silverfox was extremely intoxicated and also stated that he had told the guard upon release that something was seriously wrong with Mr. Silverfox. Neither Craig MacLellan nor any of the members present recalled this occurring, and it does not appear on the video.

At 6:55 a.m., Constable Dennis Connelly released the other men in Cell 3, at which time he spoke briefly to Mr. Silverfox. He again checked on Mr. Silverfox at 7:22 a.m., asking if Mr. Silverfox was all right. Mr. Silverfox did not respond, although his eyes were open and he continued to move about. Constable Connelly checked on Mr. Silverfox again at 7:57 a.m.

Corporal Gale, the senior member at the time of Mr. Silverfox's booking into cells, attended the cell block at approximately 7:51 a.m., likely shortly before going off shift. RCMP national operational policy in effect at the time stated:

19.3.1.11 At the commencement and conclusion of a member's or guard's shift, the senior member on duty, accompanied by the guard, will assess each prisoner in every cell and record same.

19.3.2.1 You and the guard on duty are responsible for determining the responsiveness of each prisoner in cells and must be familiar with the requirement to assess prisoner responsiveness and conduct assessments as required.

19.11.12.3 The incoming Watch Commander will check C13's and confirm the status of each prisoner and will ensure that a prisoner is being lawfully detained.

Although Corporal Gale was present in the cell block, there is no evidence that he took any steps to check or assess Mr. Silverfox at the conclusion of his shift.

In response to the administrative review conducted, Inspector Wharton ensured that Watch commanders understood their responsibilities towards the detachment cell block facilities and prisoners, as well as the need to assess prisoners and record same. Unit supplements were updated to reflect national policy.

Corporal MacLeod, the Watch Commander at the time of Mr. Silverfox's death, began her shift at 7 a.m. It would end at 7 p.m. Corporal MacLeod first attended the guardroom at 8:03 a.m., but did not conduct a physical check in the cell block.

Although Corporal MacLeod did recall reading over the Prisoner reports (C-13s) as required by policy, which at that time consisted only of that of Mr. Silverfox, there is no indication that she performed a physical check or assessed Mr. Silverfox's condition as required by the policy. There is no evidence that she questioned why Mr. Silverfox had not been administered an ASD and his BAC recorded. Mr. Silverfox's vomiting was not covered in detail on his Prisoner Report, nor was his examination by EMS, and there is no indication that any member or Craig MacLellan gave her any further information regarding Mr. Silverfox.

Corporal MacLeod stated at the coroner's inquest that she had not performed the physical check, as Mr. Silverfox was using the washroom. The cell block video shows that she arrived in the cell block at approximately 8:03 a.m. She reviewed the Prisoner Report approximately one minute later, and at 8:09 a.m. began to assist with searching and booking in a resistant prisoner, which appeared to take her some time, as she did not reappear and leave the guardroom until 8:20 a.m. Mr. Silverfox began using the washroom at 8:17 a.m. and was not finished until 8:29 a.m.

Although Corporal MacLeod's explanation for not performing a physical check of Mr. Silverfox is consistent with the events as seen on the cell block video, the policy in respect of checks at the beginning of the senior member's shift does not provide that such checks will be conducted only "where possible"; the policy is prescriptive in that such checks must be performed. Finally, there is no indication that Corporal MacLeod attempted to wait or returned to determine whether Mr. Silverfox would be available, and as above, she did not appear to have asked any questions or received any information in respect of Mr. Silverfox.

I also reiterate my previous recommendation that the Detachment Commander conduct regular "spot checks" of cell log books and Prisoner reports to monitor compliance with RCMP policy. Also, as previously stated, Inspector Wharton indicated in response to the administrative review that he had ensured that Watch commanders were better aware of their responsibilities.

Craig MacLellan remembered speaking to Constable Connelly about Mr. Silverfox and telling him that Mr. Silverfox had been sick at the Salvation Army and was dry heaving. He also remembered that Mr. Silverfox had urinated in his pants. Craig MacLellan noted that Mr. Silverfox did not say anything and continued, "[...] and that was strange too because I know like if people are sick or not feeling well they're usually pounding on the door like you know [...] saying call EMS over like lots of minor things [...]." He did not recall the other two prisoners saying anything about Mr. Silverfox. In the cell log book, Craig MacLellan noted Mr. Silverfox dry heaving on two occasions.

The RCMP's national operational policy at the time of Mr. Silverfox's death provided the following with respect to duties of RCMP members in regard to prisoners:

19.2.3.2 Assess responsiveness regularly.

19.2.3.3 Transfer this information, e.g. quantity of alcohol/drugs consumed, evidence of liquor bottles/drug paraphernalia observed, to form C-13-1 and the investigative file.

19.2.3.4 Relay this information and the results of the responsiveness assessment to the member or guard responsible for his/her custody until the prisoner is released. The information must also be relayed to any medically trained professional [which includes a medical practitioner, nurse, paramedic and ambulance attendant].

19.2.3.5 Ensure the information regarding the assessment of responsiveness is communicated to the relief members and guards until the time of the person's release. Regularly assess and communicate the results.

[...]

19.2.3.8 Assessing prisoner responsiveness results must be noted on form C-13-1 before lodging the person in a cell and regularly thereafter by the guard on duty until release.

As previously determined, Constable Bulford adequately assessed Mr. Silverfox's responsiveness at the time of booking. Although Craig MacLellan stated that he could not recall the booking members providing him with any information in respect of Mr. Silverfox, he later stated that he told Constable Connelly that Mr. Silverfox had been vomiting at the Salvation Army. As that information was not detailed on the Prisoner Report, it is apparent that he must have been provided with at least some information regarding Mr. Silverfox's circumstances by either Constable Bulford or Constable Van Marck. However, it is equally apparent that the transfer of information between the members and the guard was not formalized to such a degree that it was either recorded or specifically recalled by Craig MacLellan. Certainly, there was no indication from either member or from Craig MacLellan that the importance of transferring information regarding those in RCMP custody was recognized. The evidence available to me is such that it does not lead to the conclusion that information regarding Mr. Silverfox's particular situation was comprehensively communicated to Craig MacLellan by Constable Bulford or Constable Van Marck, as required by policy.

In addition, I reiterate my recommendation that Watch commanders review cell log books to ensure compliance with policy regarding the checking and monitoring of prisoners, as well as recording same.

During Craig MacLellan's guard shift, he made a number of notations in the cell log book regarding Mr. Silverfox. RCMP national operational policy regarding the requirements for on-duty guards provides:

16.4.4.5 Video surveillance cameras should be used to increase cell-block security but they do not replace physical security checks.

19.3.3.1 All checks of a prisoner will be recorded in the prisoner log record book.

19.3.3.2 The prisoner log record book [...] must include columns for date, time, prisoner number, cell number, observations, type of check completed, e.g. CCVE or physical check where the guard or matron attends the area outside the cell to observe the prisoner, and the guard's initials.

19.3.5.1 Check prisoners frequently and at irregular intervals to ensure their security and well-being. Ensure the intervals are no more than 15 minutes apart.

19.3.5.2 Document all checks of a prisoner in the prisoner log record book. Detail prisoner activities, the type of check completed and the status of a prisoner at the time of the check. Ensure these entries can be clearly read and understood if reviewed at a later date.

In addition, "M" Division operational policy regarding the monitoring of prisoners states:

19.1.1.3 The guard/matron shall check all prisoners on an intermittent basis, e.g. 5, 8, 10, 7 minutes, but no longer than 15 minutes apart and continuously if they are sick or injured. The guard/matron must ensure there is physical movement observed during each and every check and that these movements are documented.

19.1.1.4 In detachments with monitoring equipment the guard/matron shall indicate in the guardroom log book if the check was done physically or by way of a monitor. This will be done by writing either "M" (monitoring) or "P" (physical) in the log beside each entry.

The applicable policy specific to the Whitehorse RCMP Detachment provides:

19.3.3.1 The video monitor is in place to allow for an increased level of monitoring and does not constitute a check of the prisoner.

Craig MacLellan made notations regarding Mr. Silverfox at intervals of between 2 and 15 minutes. The time intervals noted were irregular, as required by policy, but there were no notations indicating whether the checks performed were physical checks, or checks by way of the video monitor. This is contrary to divisional policy in this respect. The cell block video shows that only one of the checks performed by Craig MacLellan was a physical check. As national, divisional and detachment policy specifically state that a video monitor check does not constitute a check of the prisoner, there were an insufficient number of checks performed in respect of Mr. Silverfox during Craig MacLellan's guard shift.

Most of the notations made by Craig MacLellan stated only what position Mr. Silverfox was lying in at that particular time, although he noted three instances in which Mr. Silverfox appeared to be dry heaving or vomiting. The cell block video, however, shows seven instances in which Mr. Silverfox appears to be vomiting. None of those instances corresponds with times noted in the cell log book. Although it is impossible to conclude that physical checks would have resulted in the guard noting more of Mr. Silverfox's actions, it must nonetheless be concluded, as above, that Mr. Silverfox was inadequately monitored.

Physical vs. video checks

As stated, divisional and detachment policy require that checks on prisoners, which should be no more than 15 minutes apart, should also be physical checks as opposed to checks by way of the video monitor. The requirement that physical checks be conducted is consistent with the national policy in that respect.

Although physical checks may appear to be a cumbersome and often unnecessary process when video monitoring is in place, it is incumbent upon members and guards to recognize that physical checks are vital in assessing prisoner responsiveness, as is also required by policy, and in noting prisoner appearance and behaviour that may be missed due to the relatively low quality and resolution of most cell block video equipment. In addition, the cell block video in this instance was not equipped for audio transmittal from within the cells, and a video check would not indicate in every instance when a prisoner may be calling for help or otherwise acting unusually.

It is without question that a physical check and direct observation of prisoners provides more information than simply viewing a video monitor, and in my view, it is important that policy regarding the requirement to physically check prisoners be maintained and followed. Although the advent of new monitoring technology is useful, it should, as noted in policy, be used to supplement direct observation and not to replace it.

Beyond the requirement for physical checks, RCMP national operational policy provides:

19.3.5.4 Constantly monitor prisoners known to have, or suspected of having, suicidal tendencies, as well as the prisoners who have been examined by a medically trained professional [...] and certified fit to be incarcerated.

19.3.5.4.1 To constantly monitor means to watch or observe without interruption. Use of CCVE [closed-circuit video equipment] may augment but not replace physical checks.

In this instance, Mr. Silverfox was found fit to be incarcerated by medical personnel. According to the policy, he should have been subject to constant monitoring. A great deal of discussion at the coroner's inquest centred around the requirement for constant monitoring and what, exactly, was implied by constant monitoring. Although "constant monitoring" implies a heightened level of surveillance and increased alertness to any problems given what appears to be the predisposition of those who have been medically examined prior to incarceration, it would be impossible for the guards or members to physically monitor any prisoner, including Mr. Silverfox, constantly without significant resource implications. In my view, the requirements for frequent physical checks supplemented by video monitoring were sufficient in this instance, although their sufficiency is largely predicated on compliance with the policy. Accordingly, I find that the requirement of constant monitoring would have been satisfied through compliance with RCMP policy regarding physical checks of prisoners, supplemented with an enhanced level of awareness given that Mr. Silverfox had been medically examined prior to incarceration.

Heather Balfour's guard shift

Ms. Heather Balfour took over from Craig MacLellan as matron at approximately 7:40 a.m. She would remain on shift until approximately 3:30 p.m. Ms. Balfour first took the guard training course on June 17, 2007, and subsequently completed refresher courses on January 14 and August 30, 2008. She also possessed valid first aid and CPR certification. Accordingly, her training was complete and up to date.

At the beginning of her shift, Ms. Balfour walked to the window of Cell 3 to perform a physical check on Mr. Silverfox. RCMP national operational policy requires that such a check be performed at every shift change,^{Footnote 4} and Ms. Balfour acted in compliance with that policy.

Ms. Balfour proceeded to conduct a number of physical checks throughout her shift: at 7:38 a.m., 8:56 a.m., 9:13 a.m., 9:32 a.m., 10:09 a.m., 10:59 a.m., and 1:02 p.m. In the interceding times, she would check the video monitor and make notes in the cell log book. According to Ms. Balfour, she "could see that [Mr. Silverfox] was actually moving ah in many different ways [...] and some of the members actually went and talked to him." She continued, "[...] in the afternoon he wasn't moving as much and I made some rounds then for sure and so and then I actually went and spoke to him a couple times too."

Ms. Balfour made a total of 41 notations in respect of Mr. Silverfox, mainly consisting of observations regarding where and how he was laying in the cell. The notations, and accordingly checks on Mr. Silverfox, were made at intervals of 15 minutes or less and at irregular times, as required by the policy detailed previously. Ms. Balfour, like the previous guard, failed to note whether the checks conducted were physical checks or checks by way of the video monitor. The cell block video provides further information in this regard, as detailed above. Ms. Balfour performed seven physical checks during the approximately eight-hour shift.

My comments with respect to the need for physical checks as opposed to checks by way of the video monitor are equally applicable here. Ms. Balfour specified that she would not necessarily have made her rounds every fifteen or twenty minutes if the prisoners were "up and moving." However, the policy does not allow for deviation; there is no provision for omitting to perform physical checks if it is apparent that individuals are moving about their cells. As alluded to previously, and as is tragically apparent in the case of Mr. Silverfox, the fact that prisoners are moving does not inexorably lead to the conclusion that they are not in any distress. Accordingly, I would once again reinforce the need for physical checks of prisoners, as they did not occur in this instance.

I reiterate my previous recommendation that Watch commanders review cell log books intermittently throughout and at the end of their shifts to ensure compliance with RCMP policy regarding checking and monitoring prisoners, as well as recording same. I also note that Inspector Wharton spoke with Ms. Balfour on July 20, 2009, regarding the requirement to check prisoners frequently at irregular intervals no more than 15 minutes apart, the proper use of closed circuit video equipment, and properly recording checks in the guardroom log book.

In the cell log book, Ms. Balfour noted during her shift that Mr. Silverfox vomited on five occasions and could be seen dry heaving on six occasions. Nine of the instances she indicated coincided with the times at which Mr. Silverfox is noted to vomit on the cell block video. However, on the cell block video, Mr. Silverfox can be seen to vomit and/or dry heave approximately 22 times. Accordingly, between 11 and 13 instances of vomiting and/or dry heaving were missed or not noted in the only available record of prisoner activity.

Although Mr. Silverfox was not physically observed to have vomited the number of times he in fact did, it was apparent that the cell was becoming more and more contaminated. The cell block video clearly shows an increasing amount of fluid on the cell floor.

At one of those times, Ms. Balfour stated to Mr. Silverfox, "Why don't you go puke in the toilet instead of all over the floor. Go puke in the toilet. You're gonna have to clean, you're gonna have to clean this up." It is of note that the RCMP national operational policy provides:

19.3.4.5 Do not ask or direct a prisoner to clean or mop out his/her cell or a police vehicle.

Guards and matrons are required to familiarize themselves with all applicable RCMP policies. Accordingly, Ms. Balfour's threat, directed as it was towards Mr. Silverfox, was contrary to the stated policy in this regard.

Ms. Balfour indicated that she thought Mr. Silverfox was getting better in the afternoon, as he started to get up and vomit into the cell toilet.

Ms. Balfour did not find it odd that Mr. Silverfox continued to vomit, as: "...we have people that vomit all the time [...]. So I didn't really think that it was you know particularly odd." Constable Jeffrey Kalles, a Whitehorse provost member present in the guardroom at various points throughout Mr. Silverfox's incarceration, indicated that Ms. Balfour had told him at approximately 3 p.m. that Mr. Silverfox had urinated, defecated and vomited, and that he was still intoxicated after being in cells for ten hours. Constable Heather Kaytor, another provost member intermittently present in the guardroom, stated that Mr. Silverfox's vomiting was apparent, "[b]ut there was never any indication or questions or voices of concern that it was anything else but intoxication and vomiting as a result of his intoxication." Tellingly, Constable Kaytor stated: "[...] there's nothing unusual about that day except for what happened later in the day."

Hector MacLellan's guard shift

Just before 3:30 p.m., Hector MacLellan began his shift as cell guard. Hector MacLellan first completed his guard training on June 16, 2007. He subsequently completed a refresher course on January 14, 2008. Although it is desirable that refresher courses be taken every six months, he nonetheless met the standard for annual recertification as required by policy. He possessed current first aid and CPR certification. Accordingly, his training was complete and up to date.

Mr. Silverfox had knocked on his cell door at the time of the shift change, which was noted by Ms. Balfour, but no one responded and he returned to lying down in the cell. Ms. Balfour told Hector MacLellan that Cell 3 was a mess and that Mr. Silverfox had been vomiting. She stated: "[...] he's been throwing up all day so he'd sooner just throw up and not move." Hector MacLellan asked, "Did he shit himself?" and Ms. Balfour responded that she did not think so. Hector MacLellan proceeded to physically check Mr. Silverfox, who was awake at that time, at the beginning of his shift, as required by RCMP national operational policy.

Hector MacLellan stated: "There was no sign of any trouble whatsoever with him." He could not recall seeing Mr. Silverfox vomit while he was on shift. He did not note any vomiting or dry heaving by Mr. Silverfox in the cell log book. Mr. Silverfox in fact appeared to have vomited three times during Hector MacLellan's guard shift, specifically at 3:59 p.m., 4:34 p.m. and 5:08 p.m. None of those instances was noted by Hector MacLellan. Hector MacLellan made notes in the cell log book in respect of Mr. Silverfox at intervals of exactly 15 minutes-contrary to the policy previously noted-between 3:30 p.m. and 6:01 p.m. None of the checks performed, beyond the initial one, was a physical check. Accordingly, an insufficient number of checks were performed, at intervals that could not be termed irregular. The monitoring of Mr. Silverfox at this time was entirely inadequate.

I reiterate my recommendation that Watch commanders review cell log books intermittently throughout and at the end of their shifts to ensure compliance with RCMP policy regarding checking and monitoring prisoners, as well as recording same.

I note that Inspector Wharton spoke with Hector MacLellan on July 16, 2009, regarding the requirement to check prisoners frequently at irregular intervals no more than 15 minutes apart, the proper use of closed-circuit video equipment, and properly recording checks in the guardroom log book. Nonetheless, in my view, this guard's failure to comply with the minimal requirements for supervision of a prisoner was such that further remedial action should be considered by the RCMP in respect of his employment.

Hector MacLellan's impression was that Mr. Silverfox was gradually "sobering up" and getting restless as a result. As was the case with the other guards on shift, Hector MacLellan failed to indicate whether the checks were physical checks or whether he had simply checked the video monitor.

I reiterate my previous recommendations and note that Inspector Wharton spoke with Hector MacLellan in this regard.

Constable Kaytor, Constable Connelly and Constable Kalles, Whitehorse provost members, as well as Constable Geoff Corbett and Constable Shirley Telep, were in the guardroom at various times during Mr. Silverfox's incarceration. Constable Connelly noted that Mr. Silverfox had urinated on himself, saying: "He's definitely, he's definitely pissed himself because he's ah, he's opened up his pants and all that stuff to try and get it away from his body, short of taking them and the only reason he probably hasn't taken them off is he probably pooped in there." Constable Connelly further stated, "[...] it looks like a fucking smut in here." Constable Connelly later said: "[...] poopy, poopy mc poopy."

At 3:49 p.m., Constable Corbett checked on Mr. Silverfox after looking at the video monitor and remarking, "There's shit everywhere." Constable Corbett entered the cell block and spoke to Mr. Silverfox. Mr. Silverfox requested a mattress, but Constable Corbett responded: "No ... you can sleep in your own shit." He further stated to Hector MacLellan and Constable Kalles, who were in the guardroom: "Yeah you need a pizza too. What else can I get for ya?" Constable Kalles continued, "... get him some sausages [...] throws that up and eat it [...]." The members continued to talk about the cell's cleanliness, Constable Corbett referring to it as a "biohazard" and saying, "it's disgusting." Hector MacLellan advised that if there was anyone that someone didn't like in town, they should get them and put them in the cell with Mr. Silverfox.

Constable Corbett did not remark anything physically unusual about Mr. Silverfox during their interaction, but also stated that he had not dealt with Mr. Silverfox previously and accordingly had no basis for comparison. None of the subject members could recall dealing with Mr. Silverfox previously, and indeed, there were no recent files involving him at the Whitehorse RCMP Detachment.

In respect of Mr. Silverfox's medical condition, Constable Kalles continued once Constable Corbett had left. He stated: "Must be on some kind of drugs or somethin'. He can't, 'cause he can't get up like he's just rollin' around and -." A short time later, Constable Kaytor, Hector MacLellan and Constable Telep continued discussing Mr. Silverfox:

HK: Look just rolling around in that.
HM: Oh yeah, yeah -
HK: It's terrible to watch.
...
ST: Ew doesn't even have got his shirt on.
HK: Oh it's just gross.
...
HK: That is, that's is really disgusting.
ST: He must have got the flu. [laughs]
HK: Yeah (...) [laughs] but it's a terrible...
...
HK: Like there's a terrible stomach one going around.
ST: I know.
HK: (indiscernible) he's gonna poop his pants right away [...] Correct.

I have specifically addressed the contents of the guardroom audio recording later in this report.

The Watch Commander on duty, Corporal MacLeod, began her shift at 8 a.m. and checked in at the guardroom at that time. She did not check on the prisoners and did not return to the cell block until approximately 4 p.m. RCMP national operational policy provides:

19.3.1.11 At the commencement and conclusion of a member's or guard's shift, the senior member on duty, accompanied by the guard, will assess each prisoner in every cell and record same.

The applicable "M" Division operational policy states:

19.1.1.5 The guardroom and all prisoners are to be checked by the senior member on shift, at the beginning of each shift and intermittently during shift.

Finally, the relevant policies specific to the Whitehorse RCMP Detachment provide:

19.3.3.2 The Watch Commander or delegate shall ensure their inspections are noted in the prisoner log in red ink. [emphasis in original]

19.11.12.1 The Watch Commander or in his/her absence, the Senior Constable on shift, has overall responsibility for the Detachment cell block.

19.11.12.2 At the commencement of the shift, and periodically during the shift, the Watch Commander will physically check the cell facilities and prisoners and record any adverse findings in the prisoner diary book in red ink, inclusive of regimental number.

19.11.12.3 The incoming Watch Commander will check C13's and confirm the status of each prisoner and will ensure that a prisoner is being lawfully detained.

As previously determined, Corporal MacLeod did review Mr. Silverfox's Prisoner Report shortly after the start of her shift, but did not conduct a physical check of Mr. Silverfox. It is also apparent that Corporal MacLeod, as Watch Commander, did not return to the guardroom or the cell block intermittently during her shift, as required by policy. Corporal MacLeod stated at the coroner's inquest that she trusted that the guards on duty would inform her of any issues with the prisoners, and that she was "shocked" when she attended the cell block late in her shift and saw the condition of Mr. Silverfox's cell.

It is reasonable for a Watch Commander to expect to be notified if a prisoner's condition changes or if a problem arises in the cell block. However, Watch commanders should not substitute reasonable reliance on those individuals directly tasked with monitoring prisoners for the requirement that they also continue to intermittently check prisoners. It is understood that many issues arise during the course of a day or a shift; nonetheless, the requirement to check periodically remains. Watch Commanders should not find themselves surprised by a condition that has been developing over the course of some eight hours. It is doubtless to avoid such a situation that policy requiring intermittent checks was developed. The responsibility to ensure the well-being and fitness of prisoners and cells should not and cannot be devolved to the extent that a Watch Commander is unaware of what is occurring within the detachment. Corporal MacLeod failed to ensure that she was aware of emergent issues in the cell block, in large part because she failed to periodically check on Mr. Silverfox as required by RCMP policy.

I reiterate my recommendation regarding regular "spot checks" of cell log books to ensure that Watch commanders are checking and assessing prisoners at the beginning, end and throughout their shifts as required by RCMP policy. In addition, and as previously noted, Inspector Wharton ensured, in response to the administrative review, that Watch commanders understood their responsibilities to the detachment cell block facilities and prisoners, and updated unit supplements to reflect national policy.

At approximately 6 p.m., Constable Mike Muller arrived at the detachment cells with an unruly and combative prisoner, and several members arrived to help him. Corporal MacLeod attended the guardroom in response to Constable Muller's request for help, as did Constable Kendra Hannigan.

At 6:34 p.m., Corporal MacLeod learned from Hector MacLellan that Mr. Silverfox had been sick throughout the day, and she decided to go to Cell 3. Constable Hannigan checked on Mr. Silverfox at 6:36 p.m., (Timeline) followed by Corporal MacLeod at 6:41 p.m. Corporal MacLeod looked inside, where Mr. Silverfox was lying prone, mainly on his stomach, and shirtless. Corporal MacLeod could not see Mr. Silverfox breathing and called out to him, as did Hector MacLellan. Mr. Silverfox did not respond.

Hector MacLellan opened the cell door at 6:43 p.m., and Constable Muller and Constable Hannigan checked Mr. Silverfox's vital signs. Constable Hannigan noted that "his mouth [was] slightly open, his eyes [were] glazed and wide open. His eyeballs were rolled back into his head." Finding none, Corporal MacLeod told Hector MacLellan to call an ambulance, which he attempted to do, but the line was busy. He then asked Constable Hannigan to call for an ambulance on her radio. The ambulance was contacted at 6:43 p.m. and advised that there was an unresponsive prisoner in cells. Dispatch was subsequently told that the prisoner was not breathing.

RCMP national operational policy requires that if a member is unable to establish the responsiveness of a prisoner, medical assistance shall be immediately requested.^{Footnote 5} Immediately upon determining that Mr. Silverfox was unresponsive, Corporal MacLeod directed that an ambulance be called. Her actions were consistent with policy in this respect.

Corporal MacLeod began chest compressions on Mr. Silverfox, who had been pulled into the cell block hallway following the check of his vital signs: "This was done as cell was contaminated [with] feces and urine and there was an overpowering stench." Constable Hannigan then took over chest compressions. Constable Muller was meanwhile performing artificial respiration. Several other RCMP members were present by that time, including Constable Benjamin Douglas and Constable Chris Pratte, who also rotated in to perform chest compressions, as well as Constable Dean Hoogland, Constable Craig Hughes and Constable Jade Stewart.

EMS arrived at 6:47 p.m. and took over care of Mr. Silverfox. Ms. Kathy Donnelly, one of the responding EMS attendants, described Mr. Silverfox's initial appearance as cyanotic, meaning that he lacked oxygen, and stated that his pupils were fixed. She also stated that he smelled of vomit. Mr. Shane Skarnulis, another paramedic in attendance, described his skin colour as "greyish." Mr. Silverfox was transported to the hospital and arrived in the emergency room of Whitehorse General Hospital at 7:16 p.m., where efforts to resuscitate him continued. Mr. Silverfox was pronounced dead at 9:15 p.m. A toxicological screen did not reveal elevated levels of alcohol or the presence of drugs.

An autopsy was conducted on Mr. Silverfox on December 5, 2008, by Dr. Charles Lee at the Vancouver General Hospital. The autopsy report, released on February 12, 2009, concluded that Mr. Silverfox had died of sepsis and acute pneumonia. The report added that, "[p]ostmortem cultures grew several bacterial organisms suggestive of aspiration pneumonia." The report noted that an "overwhelming infection" likely led to Mr. Silverfox's death. It also noted that chronic alcoholism was a likely contributory factor.

The investigation

The investigation into Mr. Silverfox's death was initially conducted by the "M" Division Major Crimes Unit; however, it was quickly turned over to RCMP "E" Division North District Major Crime Unit in British Columbia. On December 3, 2008, that team, led by Team Commander Staff Sergeant Glen Krebs and including File Coordinator Corporal Randy Bosch and Primary Investigator Sergeant Gary Heebner, began its work.

The Commission also dispatched an independent observer, and impartiality questionnaires were completed by the involved members. No material concerns were identified. The Independent Observer Program is an initiative arranged between this Commission and the RCMP whereby Commission staff are assigned to observe and assess the impartiality (not the adequacy) of RCMP investigations that examine the conduct of RCMP members who are involved in high-profile and serious incidents, such as in-custody deaths.^{Footnote 6}

The RCMP investigators were conducting a criminal investigation into the actions of the members and guards, specifically to determine whether sections 219 (criminal negligence), 220 (causing death by criminal negligence) and 222 (homicide) of the Criminal Code applied in this situation so as to warrant charges. Following the investigation, the investigative report was forwarded to Crown Counsel Elizabeth Miller of the Office of the Director of Public Prosecutions Nunavut Regional Office. In her opinion, no charges were warranted in the circumstances. Solicitor-client privilege applying in this instance, the Crown's opinion was not provided to the Commission as part of the relevant materials.

The administrative review

An administrative review was conducted by Inspector de Champlain of the "K" Division Commercial Crime Section. That review, completed on May 26, 2009, identified a number of areas of non-compliance with policy and recommendations for improvement (Detachment Commander, outlined his responses to the recommendations on June 16, 2009 (Appendix E) [PDF, 523Kb]. Those responses are included throughout this report where relevant.

Issue Surrounding the Duty of Care Owed to Persons in RCMP Custody

Under the rubric of the general duty of care owed by the RCMP to persons in its custody are the provision of medical attention and the conditions in which prisoners are incarcerated. Both issues resonate strongly in the case of Mr. Silverfox.

Comment Regarding the RCMP Investigation Undertaken into the In-Custody Death of Mr. Silverfox

Three separate investigations were conducted into this incident by the RCMP, as previously noted: a criminal investigation, an administrative review and a public complaint investigation. The steps involved in each investigation bear mentioning, as the issue of the police investigating the police has frequently been an area of public concern, as well as the subject of a Commission report released in August 2009.

The criminal investigation began very shortly after Mr. Silverfox's death on December 2, 2008. Although initially begun by the "M" Division Major Crimes Unit, the investigation was turned over to the "E" Division North District Major Crime Unit the next day so that an independent investigation could be conducted as per RCMP policy. The investigation was conducted in accordance with Major Case Management principles and was led by Team Commander Staff Sergeant Glenn Krebs.

The investigative team proceeded to identify and obtain recorded statements where necessary from 8 civilian witnesses; 15 members involved in the events surrounding Mr. Silverfox's arrest, incarceration and attempted resuscitation; 3 civilian staff; and 5 EMS personnel. The team also obtained any relevant documentation, including members' notes, log books, medical records, and training records and standards.

The Commission assessed the impartiality of the criminal investigation with respect to line management, level of response, timeliness of response and conduct. The salient points of the impartiality assessment are as follows:

Line management: "M" Division members began the investigation into Mr. Silverfox's in-custody death at approximately 9:30 p.m. on December 2, 2008. A team was immediately structured following Major Case Management principles, and evidence such as guard logs and the cell block video was preserved. Members were advised of their duty to report. "E" Division was advised of the investigation at 7:30 a.m. on December 3, 2008, and Staff Sergeant Krebs arrived in Whitehorse to begin his investigation by 12:30 p.m. that day. By early the next day, all "M" Division staff had been removed from the investigation, and Staff Sergeant Krebs required all members of the investigative team to complete impartiality questionnaires prior to beginning work on the investigation. No potential conflicts of interest of concern were identified by either Staff Sergeant Krebs or the CPC Observer. In light of the foregoing, I have no concerns with line management.

Level of response: The initial response of "M" Division members, particularly Sergeant Mark London, was exemplary. Sergeant London was fully aware of his responsibilities, including the need to preserve evidence and ensure that members understood their responsibility to account for their actions. The "E" Division investigative team that subsequently assumed the investigation had extensive experience and skills, and the Major Case Management model was followed. I have no concerns with the level of response.

Timeliness of response: The investigation into the death of Mr. Silverfox commenced by "M" Division members approximately 15 minutes after his death and was taken over by the "E" Division team less than 12 hours later. In my view, the timeliness of the response to this incident was appropriate.

Conduct: The Commission noted the professionalism of the members involved in the criminal investigation, who fully realized the nature of their task and fulfilled their mandate. I have no concerns with respect to the conduct of the RCMP members involved in the criminal investigation.

Based on the assessment of the Commission Observer, the documentation acquired and my review of the investigative file, I find that there were no concerns relating to the impartiality of the criminal investigation into the in-custody death of Mr. Silverfox.

As stated, I have reviewed the statements taken and documentation accumulated in the course of the criminal investigation. It is apparent that the investigation was thorough and detailed. All relevant tasks were completed and the necessary information obtained. Although there is some discrepancy, as noted above, as to the use made of the audio recording of the guardroom, this does not affect my conclusion that the criminal investigation undertaken into the in-custody death of Mr. Silverfox was thorough and well documented. I would add that the investigation was completed in approximately three months, which is well within reason for an investigation into a serious incident.

Although not related to the death of Mr. Silverfox, the Commission's Final Report concerning Police Investigating Police (issued following both the death of Mr. Silverfox and the ensuing criminal investigation) concluded that in circumstances involving in-custody deaths, for example, an independent, external investigator should be used in order to address public perceptions surrounding the impartiality of the designated investigator. Although the investigative team in this instance was not external to the RCMP, other features of the model proposed by the Commission to ensure impartiality and enhance credibility were evident. Specifically, the investigators were of appropriately senior rank, many interviews were conducted by two members, the investigative team was appropriately qualified, and the investigation was timely.

It is also of note that the RCMP recently implemented an external investigations policy that would see criminal investigations such as the one into the in-custody death of Mr. Silverfox delegated to an external investigative body.

Equally, an administrative review of the investigation was conducted by Inspector Yvon de Champlain of the "K" Division Commercial Crime Section. Inspector de Champlain was responsible for evaluating compliance with certain aspects of RCMP policy by those involved in the events surrounding Mr. Silverfox's death. Inspector de Champlain determined that the investigation into the incident was conducted in accordance with RCMP policy, and he had no concerns with issues of impartiality. Inspector de Champlain also identified a number of deficiencies in the application of national, divisional and detachment-level policy respecting cell block operations at the time of Mr. Silverfox's death. As noted throughout the report, Inspector Mark Wharton, the Whitehorse Detachment Commander, responded to these recommendations by taking actions designed to rectify the deficiencies noted. I find that Inspector de Champlain's administrative review, much like the criminal investigation, was thorough and well documented within the boundaries of his particular mandate.

The third and final investigation undertaken in respect of the in-custody death of Mr. Silverfox was the public complaint investigation carried out in response to the Commission Chair's complaint. The RCMP assigned Staff Sergeant Tom Caverly, the Non-Commissioned Officer in charge of the "E" Division Legal Application Support Team in British Columbia, as the public complaint investigator. It is of note that Staff Sergeant Caverly is an experienced investigator who works within a specialized unit in a separate division, and it is clear that the need for an investigator with as high a degree of independence as possible was recognized and addressed.

In the course of his investigation, Staff Sergeant Caverly reviewed the materials already accumulated in support of the two preceding investigations, described above. He also further interviewed the members and civilian staff who interacted with Mr. Silverfox and examined relevant policy. Staff Sergeant Caverly took all reasonable investigative steps appropriate in the circumstances, and I find that his public complaint investigation was responsive to the Chair's complaint.