Chair's Final Report After Commissioner's Notice: Chair-Initiated Complaint Regarding the In-Custody Death of Mr. Raymond Silverfox

Background

On the night of December 1, 2008, Mr. Raymond Silverfox of Carmacks, Yukon Territory, was celebrating his 43rd birthday. He and his girlfriend secured a drive to Whitehorse, a 2.5-hour drive away. Upon arrival in Whitehorse in the early hours of December 2, 2008, the two found lodging at the Salvation Army shelter. They had continued to drink until that time.

Once at the shelter, Mr. Silverfox began to vomit. Shelter staff called Emergency Medical Services (EMS), knowing that Mr. Silverfox would not be taken into custody by the RCMP without first being medically cleared. Shortly before 5 a.m., EMS personnel attended and cleared Mr. Silverfox, determining that his vital signs and responses were within the normal range despite his intoxication. However, Mr. Silverfox could not remain at the shelter due to his vomiting, so EMS personnel called the RCMP in the hope that Mr. Silverfox could be incarcerated for the night, as it was extremely cold outside.

Constable Len Van Marck and Constable Daniel Bulford attended the shelter. Mr. Silverfox was arrested for public intoxication and booked into Cell 3 at the RCMP Detachment shortly after 5 a.m. Watch Commander Corporal Calista MacLeod checked on Mr. Silverfox at approximately 8 a.m. after beginning her shift. She was the Watch Commander and senior member on duty throughout Mr. Silverfox's incarceration. During that period, three different guards and matrons were responsible for the cell block.

Mr. Silverfox remained in RCMP cells throughout the day while he continued to be sick. Some of those instances were noted by the guards and/or matrons and members present in the guardroom, but most were not. However, Mr. Silverfox's cell became increasingly contaminated with his bodily fluids. Throughout this time, members and guards may be heard discussing Mr. Silverfox's condition on the audio recording of the guardroom. Few physical checks were conducted in respect of Mr. Silverfox, although he continued to be monitored through use of the closed-circuit video equipment (CCVE).

Near 4 p.m., Mr. Silverfox requested a mattress and was refused. At approximately 6 p.m., another prisoner was brought in who, due to combativeness, required the attendance of several members, including Corporal MacLeod. After the unruly prisoner had been lodged in cells, at approximately 6:34 p.m., Corporal MacLeod checked on Mr. Silverfox and noted that he did not appear to be breathing. The cell door was opened and Constable Mike Muller checked Mr. Silverfox for vital signs. Finding none, the members pulled Mr. Silverfox out of his cell and called EMS. They also began chest compressions.

EMS personnel arrived in the cell block at approximately 6:47 p.m. and took over care of Mr. Silverfox, who was transported to the Whitehorse General Hospital a short time later. Although the paramedics were successful in briefly regaining a pulse, efforts to resuscitate Mr. Silverfox ultimately failed and he was pronounced dead at 9:15 p.m. A subsequent autopsy determined that Mr. Silverfox had died of sepsis and acute pneumonia, and the autopsy findings suggested aspiration pneumonia.

The investigation into Mr. Silverfox's death was begun by the "M" Division Major Crimes Unit, but turned over to "E" Division North District Major Crime Unit on December 3, 2008. The Commission for Public Complaints Against the RCMP (the Commission) dispatched one of its independent observers to conduct an impartiality assessment, and no material concerns were identified. The criminal investigation was subsequently forwarded to Crown counsel, who determined that no charges were warranted.

An administrative review of the incident was subsequently conducted by Inspector Yvon de Champlain of the RCMP's "K" Division Commercial Crime Section in Alberta, and a number of recommendations were made in his report, issued May 26, 2009. On June 16, 2009, Inspector Mark Wharton, the Officer in Charge of the Whitehorse RCMP Detachment, responded to those recommendations.

Shortly before the coroner's inquest into Mr. Silverfox's death in custody, which ran from April 15 to 23, 2010, it was realized that audio tape of the cell block guardroom had not been transcribed. The audio track captured members, guards and matrons commenting on Mr. Silverfox, the condition of his cell, and his illness. Two weeks after the conclusion of the inquest, the RCMP announced that a Code of Conduct investigation had been initiated in respect of this matter.

On December 12, 2008, the then Chair of the Commission, based on public concerns, exercised his authority to examine the facts that gave rise to these concerns, and initiated a complaint in respect of the incident.

The Chair-Initiated Complaint

1. whether the RCMP members or other persons appointed or employed under the authority of the Royal Canadian Mounted Police Act (the RCMP Act)involved in the events of December 2, 2008, from the moment of initial contact and arrest to the subsequent detention and death of Mr. Silverfox, complied with all appropriate training, policies, procedures, guidelines and statutory requirements relating to persons held in RCMP custody and, in particular, to providing access to medical treatment;
2. whether the RCMP members at the Whitehorse RCMP Detachment provided adequate supervision and direction to the guard or guards who were charged with the care and handling of prisoners in the custody of the Whitehorse RCMP during the period of Mr. Silverfox's detention and subsequent death; and
3. whether the RCMP national, divisional and detachment-level policies, procedures and guidelines relating to the provision of medical treatment to persons detained in RCMP custody, in particular relating to those who are detained where the consumption of alcohol is a factor, are adequate to ensure their proper care and safety.

As required by the RCMP Act, the RCMP investigated the complaint. The public complaint investigation was conducted by Staff Sergeant Tom Caverly of the RCMP's "E" Division in British Columbia. On February 16, 2010, the RCMP issued its Final Report into this matter.

Pursuant to the RCMP Act, the Commission reviews the RCMP's disposition of each Chair-initiated complaint. To this end, the Commission requested the material relevant to its review from the RCMP and received such information on March 16, 2010. The Commission received the transcripts of the coroner's inquest on June 15, 2010.

The Commission issued its Interim Report in respect of this matter to the RCMP Commissioner and the Minister of Public Safety on September 2, 2010, in which it made 39 findings and 17 separate recommendations for change.

The Commission found that the initial RCMP response and detention of Mr. Silverfox were reasonable, although the members failed to properly document Mr. Silverfox's examination by EMS personnel, and one member neglected to take proper notes. The members also failed to ask Mr. Silverfox to provide a breath sample prior to incarceration in accordance with detachment policy, a fact which senior members on duty failed to take note of. However, the members did adequately assess Mr. Silverfox's responsiveness.

The Commission went on to identify several shortfalls with respect to the monitoring of the cell block and prisoners, as well as the supervision of the guards employed by the RCMP who were charged with the care of Mr. Silverfox while in cells. The Commission found that while checks of Mr. Silverfox were largely consistent with the time intervals required by RCMP policy, the guards, who all possessed up-to-date training, failed to distinguish between physical and video checks, which is also required by RCMP policy. In addition, the Watch Commander on duty failed to periodically check on Mr. Silverfox during her shift. Nonetheless, medical assistance was immediately requested once Mr. Silverfox was found to be unresponsive, approximately 17 minutes after the last time he is seen to move in the cell video. The Commission's recommendations aimed at ensuring that senior RCMP members on duty took care to monitor compliance with RCMP policy regarding prisoner checks, and that members and guards appropriately communicated information in respect of prisoners. The Commission also recommended regular monitoring by the Detachment Commander to ensure compliance with RCMP policy.

The Commission also canvassed issues relating to the duty of care owed to persons in RCMP custody, as concerns were particularly acute in this case given comments made in respect of Mr. Silverfox by members on duty and captured on the guardroom audiotape. The Commission found that there was a failure to seek medical assistance for Mr. Silverfox throughout his incarceration, and that there were no efforts made to ensure that his cell was safe and habitable. The Commission also found that there was inadequate communication relating to Mr. Silverfox's condition and recommended heightened monitoring by senior members in that respect. As regards RCMP policy, the Commission found that policies in effect at the time of Mr. Silverfox's incarceration concerning the provision of medical assistance was inadequate, as it relied too heavily on subjective assessment of prisoner condition. The Commission recommended refinements to the policy in consultation with medical professionals, and that RCMP members in the Whitehorse community be provided with orientation and training in respect of the recognition of medical issues arising from drug or alcohol consumption.

Finally, the Commission found that several members failed to adhere to the RCMP's core values in respect of their interactions with Mr. Silverfox. The Commission recommended that all members of the Whitehorse RCMP Detachment, as well as guards and matrons employed by the detachment, be provided with training on creating a respectful environment and interacting in a manner consistent with the RCMP's core values.

The RCMP Commissioner's Notice

Pursuant to subsection 45.46(2) of the RCMP Act, the RCMP 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 May 12, 2011, the Commission received the RCMP Commissioner's Notice dated May 11, 2011. The RCMP Commissioner agreed with all of the Commission's findings and recommendations, and outlined the steps which had been taken by the RCMP both in response to the internal administrative review, during which a number of deficiencies had been identified, and to the Commission's Interim Report. Notably, the Commissioner indicated that:

• The Detachment Commander and Operational Support Non‑Commissioned Officer now conduct weekly "spot checks" of Prisoner Reports on a weekly basis.
• Specific training requirements regarding signs and symptoms of impairment and medical conditions that may arise therefrom are in the process of being identified in consultation with medical professionals in Whitehorse and considering changes that may be required with the completion of the new Yukon Secure Assessment Centre.
• Watch Commanders now review Prisoner Reports at the beginning and end of their shifts, and identify and remedy or direct the remedying of any deficiencies.
• The Detachment Commander has reviewed with all members and guards the importance of and need for meaningful, thorough and consistent communication with respect to persons in custody at the Whitehorse Detachment.
• Watch Commanders now 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.
• Detachment policy has been developed and enacted directing members and guards to seek medical attention for intoxicated persons who vomit while in custody in a prone position or vomit excessively.
• The Detachment Commander took steps to ensure that members seek medical assistance for persons in custody if there is any indication that a person is ill or suspected of having alcohol poisoning, among other conditions.
• A tracking and monitoring system for member and guard responses to incidents involving acutely intoxicated individuals has been developed.
• The RCMP has committed to working with the Commission to facilitate a yearly review of files concerning incidents of this nature for at least three years.
• Detachment policy regarding the condition of cells has been clarified, and steps have been taken such that members and guards achieve a common understanding of the threshold of "safe and habitable."
• A special Corporal position has been created at the Detachment for the purpose of enhancing supervision in the cell block area.
• Policy regarding the provision of medical assistance is currently being reviewed in consultation with local medical professionals.
• The RCMP is implementing an initiative whereby it will create a consultative group which includes medical professionals to strengthen national operational policy regarding the provision of medical assistance for persons in RCMP custody.

In my view, the measures taken by the RCMP, both at the outset and in response to the Commission's Interim Report, are significant and will be integral both to reducing the likelihood of such incidents recurring at the Whitehorse RCMP Detachment, and to fostering the RCMP's relationship with the community it serves.

The Commission's Findings and Recommendations

As a result of the Commission's investigation, I made a number of findings and recommendations that I believed would assist the RCMP in reviewing and amending its policies and practices, especially in the Whitehorse area. The RCMP responded to these findings and recommendations, as outlined above. I reiterate the Commission's findings and recommendations.

Conclusion

RCMP members owe a duty of care to the communities they serve. Policing in Northern communities, as well as many others, may often be demanding. RCMP members may be asked to fill any number of roles outside of those traditionally ascribed to law enforcement. However, as was stated in the Final Report issuing from a review of Yukon's police force jointly undertaken by the Yukon government, the Council of Yukon First Nations and the RCMP, "[p]ublic trust and confidence in the police is established in the day-to-day relationships that police officers develop with citizens as they perform their duties."^{Footnote 1} Police officers must always remain aware of their commitments to the public and of the vital role that public trust and confidence plays in their success. They must also maintain basic standards of human decency, even in the midst of difficult situations.

In the case of Mr. Silverfox's tragic death, those standards were absent. Although compassion motivated the initial decision to jail Mr. Silverfox, complacency and callousness characterized the remainder of his stay at the Whitehorse Detachment. Chief Superintendent Peter Clark, the Commanding Officer of the RCMP in the Yukon, stated in respect of this incident:

I am shocked and disappointed, as are many members of the RCMP, that Mr. Silverfox had to endure the insensitive and callous treatment he endured while he was in our care ... We have failed you and we have failed ourselves ... He deserved much better from us and there is no question that we fell short ... we didn't live up to your expectations or the standards we have set for ourselves ... and for that ... we apologize.

Both Chief Superintendent Clark's comments and the RCMP's response to the Commission's Interim Report demonstrate a recognition of the fact that Mr. Silverfox's death in such circumstances was unique in its impact, and a catalyzing event which incited a great deal of public concern. I am greatly encouraged by the strong and positive action demonstrated by the RCMP, and by its commitment to enhancing its policies and practices specific to the local area, as well as those with national application. I also note with approval the RCMP's cooperation in the establishment of the new Secure Assessment Centre in Whitehorse. The RCMP's response reflects a continuing effort to improve policing in the Yukon and should serve as a model for other jurisdictions. In my view, it is this improvement, and not the tragic circumstances of his death, that will be Mr. Silverfox's enduring legacy.

Pursuant to subsection 45.46(3) of the RCMP Act, the Commission's mandate in this matter is ended.

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Ian McPhail, Q.C.
Interim Chair