Chair's Interim Report – Public Interest Investigation into the In-Custody Death of Robert Thurston Knipstrom

1. Use of Force and Medical Treatment

In executing their duties, police officers are authorized by section 25 of the Criminal Code to use as much force as necessary. However, the officer must be acting on reasonable grounds. Section 27 permits officers to use as much force as is reasonably necessary to prevent the commission of an offence for which a person may be arrested without warrant, and that would be likely to cause immediate and serious injury to the person or property of anyone; or to prevent anything being done that he or she believes, on reasonable grounds, would be the commission of such an offence. It is important to note that the officer is not expected to measure the force used with exactitude.

Prior to utilizing force, it is incumbent upon a peace officer to perform a risk assessment, which is accompanied by a consideration of the situational factors specific to each incident. These include subject size in relation to the member, presence of weapons, number of subjects and of police officers, as well as a host of other incident‑specific considerations. In addition, RCMP members are trained to utilize one level of intervention higher than the demonstrated resistance level of the person they are dealing with.

The statements of Constables Mufford and Labbe indicate that they were aware of the following situational factors: There were a number of items in the rental store that could have been used as weapons, and a number of persons in the store. Mr. Knipstrom almost immediately became violent. Mr. Knipstrom would not comply with Constable Mufford's commands and continued to attack and stand up after being ordered to stop and to sit down or stay down. Mr. Knipstrom exhibited an unusual amount of strength and endurance, and appeared to be impervious to pain. The force options used by the members had little to no effect on him.

There were also situational factors that the members were not aware of. Mr. Knipstrom had just been involved in a minor motor vehicle accident. He had a history of illegal drug abuse and, based on the pathologist's findings, Mr. Knipstrom was under the influence of a potentially lethal amount of illegal drugs as he entered the equipment rental centre. Family accounts confirm that his behaviour changed dramatically when he was under the influence of drugs, that he often became "paranoid" and "delusional." The members were also unaware that Mr. Knipstrom had been confronted by the police earlier that year and was the subject of multiple CEW deployments. At that time, he was apprehended and taken to the hospital. Hospital records indicate that he was diagnosed with drug-induced acute psychosis and mania.

2. Adequacy of the RCMP Investigation

The incident was investigated by an integrated team of investigators from the RCMP's "E" Division Major Crime Unit (MCU), the Integrated Homicide Investigation Team (IHIT) and the Abbotsford Police Department.

When evaluating the adequacy of a criminal investigation, it is important to consider the steps taken during the investigation. The proper investigation of any serious incident requires in part, that a member pursue all leads provided promptly and effectively, interview all possible sources and suspects promptly and effectively, request all relevant forensic tests/reports to check for physical evidence and consult with other experts with specialized knowledge, follow related RCMP policy and reference other related police technical texts as required, and maintain good case management of the file, ensuring that properly written notes support the actions taken during the investigation as well as support any subsequent prosecution.

Immediately after the ambulance left with Mr. Knipstrom, the store area was locked down and the employees were kept away from the scene. Access was restricted to forensic, investigation and supervisory personnel only. Their identities and time of arrival and departure were noted. I am satisfied from the evidence that the scene was properly secured following the incident.

The Chilliwack General Investigation Section took charge of the initial investigation steps, which included securing the scene, identifying immediate witnesses, taking their statements and seizing evidence. Members from the Forensic Identification Section also attended the scene. When Mr. Knipstrom's medical condition took a turn for the worse, an "independent" investigation team was called in, in accordance with RCMP policy in cases of serious injury or death.

Findings

• The scene was properly secured.
• The appropriate personnel were dispatched to the scene at the appropriate times.
• An "independent" investigation team was assembled in a timely manner, in accordance with RCMP policy.

Police intervention and use of force

At the time that Constables Mufford and Labbe came into contact with Mr. Knipstrom, they were investigating a complaint of a man causing a disturbance and refusing to leave the Eze Rent-it Centre. As they walked into the store, their attention was called to the stairwell. Mr. Walsh had a worried look on his face. Upon asking what was happening, Mr. Walsh indicated a wish to speak to an officer in private, away from Mr. Knipstrom. Constable Labbe attempted to do so by following Mr. Walsh away from the stairs. It was apparent to the members that Mr. Knipstrom was the subject of the complaint. Constables Labbe and Mufford began their investigation by attempting to speak to Mr. Walsh and Mr. Knipstrom separately.

It is clear that Constables Mufford and Labbe were acting in the course of their duty when they started to interact with Mr. Knipstrom. They were investigating a disturbance but needed to gather more information in order to assess the situation and adopt a proper course of action.

Rather than answer a question posed by Constable Mufford, Mr. Knipstrom abruptly got up and walked past Constable Mufford, knocking into his shoulder. Based on all of the information available to Constable Mufford at that point of time, he had reasonable grounds to suspect that Mr. Knipstrom was causing a disturbance, contrary to section 175 of the Criminal Code, and had a duty to pursue the matter further. Police officers have the power to detain individuals to further an investigation where "there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary."^{Footnote 21} To that end, Constable Mufford directed Mr. Knipstrom to stop. In my view, this was a justifiable use of police powers in these circumstances. Furthermore, as the situation evolved and Mr. Knipstrom resisted and physically attacked Constable Mufford, he had made himself arrestable by committing an assault on a police officer.^{Footnote 22} The situation escalated so quickly that Constable Mufford did not have the opportunity to tell Mr. Knipstrom that he was under arrest.

The RCMP has adopted an Incident Management/Intervention Model (IM/IM)^{Footnote 23} that allows for training and supervision of members to ensure compliance with the principles set out in the Criminal Code with respect to the use of force. Under the IM/IM, use of force is scalable starting with a verbal request for compliance and increasing use of force to compel compliance up to the use of deadly force. There were seven principles underlying the model that was in place at the time of the incident:

• The primary objective of any intervention is public safety.
• Police officer safety is essential to public safety.
• The intervention model must always be applied in the context of a careful assessment of risk.
• Risk assessment must take into account: the likelihood and extent of life loss, injury and damage to property.
• Risk assessment is a continuous process and risk management must evolve as situations change.
• The best strategy is to utilize the least amount of intervention to manage the risk.
• The best intervention causes the least amount of harm or damage.

It is incumbent upon the member to perform a risk assessment, first determining which of the five behaviour classifications (cooperative, non-cooperative, resistant, combative and potential to cause grievous bodily harm or death^{Footnote 24}) the subject's actions fall into. Consideration must also be given to the situational factors specific to each incident. These include weather conditions, subject size in relation to the member, presence of weapons, number of subjects and of police, as well as a host of other incident-specific considerations.

Situational Factors

The statements of Constables Mufford and Labbe indicate that they were aware of the following situational factors, which are the starting point of the IM/IM analysis: There were a number of items in the rental store that could have been used as weapons, and a number of persons in the store. Mr. Knipstrom almost immediately became violent. Mr. Knipstrom would not comply with Constable Mufford's commands and continued to attack and stand up after being ordered to stop and to sit down or stay down. While Mr. Knipstrom was shorter than Constable Mufford, he had a stocky build, exhibited an unusual amount of strength and endurance, and appeared to be impervious to pain. The force options used by the members had little to no effect on him.

There were also several situational factors that the members were not aware of. Mr. Knipstrom had been involved in a minor motor vehicle accident just prior to attending the Eze Rent-it Centre. He had a history of illegal drug abuse and, based on the pathologist's findings, Mr. Knipstrom was under the influence of a potentially lethal amount of illegal drugs as he entered the Eze Rent-it Centre. Family accounts confirm that his behaviour changed dramatically when he was under the influence of drugs. He often became "paranoid" and "delusional".

The members were also unaware, not knowing Mr. Knipstrom's identity, that he had been confronted by the police earlier that year and was the subject of multiple CEW deployments. At that time, he was apprehended and taken to the hospital. Hospital records indicate that he was diagnosed with drug-induced acute psychosis and mania. This incident may explain Mr. Knipstrom's apparently unprompted statement "don't Taser me" when he was first confronted by the members at the Eze Rent-it Centre.

Application of Force

The IM/IM sets out various response or intervention options specific to the member's determination of subject behaviour in conjunction with the assessment of the situational factors. Intervention options include officer presence, verbal intervention, empty hand control, intermediate devices, impact weapons, lethal force and tactical repositioning. As diagrammed, in recognition of the dynamic nature of these incidents, the IM/IM is not a linear structure such that one response necessarily leads to another. Rather, the IM/IM is intended to train RCMP members with respect to the need to constantly assess the risk and potential for harm and to respond at an appropriate level.

Verbal interventions and tactical repositioning occur regardless of the level of risk to assist the member in maintaining control of the situation, de-escalating any confrontation and ensuring maximal safety for all concerned. This is consistent with the underlying principles of the IM/IM, which stress the safety of the public and the member, and define the best strategy as the least amount of intervention to manage a risk. Accordingly, the best intervention causes the least amount of harm.

Throughout the management of an incident, a member should be alert to threat cues such as body tension, tone of voice, body position and facial expression to ready them to use an appropriate response option. These threat cues may indicate the potential for a suspect to display more or less resistant behaviours described under the categories of resistance that would justify the use of different response options.

Constable Labbe first observed that Mr. Knipstrom's eyes were extremely wide, and that he stared intently at them as they arrived. She had the impression that he was afraid of something. Constable Mufford observed that Mr. Knipstrom had "an uncomfortable, worried look on his face." At one point, Constable Labbe thought that his facial muscles were twitching. Similar observations had been made by the store owner and employees.

Both Mr. McCrea and Mr. Walsh confirm Constable Mufford's statement that Mr. Knipstrom quickly adopted an aggressive stance. He had his fists clenched. Constable Mufford stated that at that point, he had reasonable and probable grounds to believe that Mr. Knipstrom was causing a disturbance, that he was concerned about Mr. Knipstrom's mental health and considering an arrest under the Mental Health Act, and that he was concerned for the safety of the people in the store. As Mr. Knipstrom had not complied with his commands to stop and to sit on the ground, and looked as though he was getting ready to fight, Constable Mufford approached him and tried to grab his wrist. Mr. Knipstrom moved behind the counter. When Mr. Knipstrom continued to ignore his commands, Constable Mufford stated that he approached him again and tried to grab him, but Mr. Knipstrom pushed him "with unexpected strength" and lunged at him. That is confirmed by Mr. McCrea and Mr. Walsh.

From the early stages of their interaction, Mr. Knipstrom was uncooperative by refusing to comply with the commands issued by Constable Mufford. Mr. Knipstrom adopted an unprovoked combative stance, and Constable Mufford perceived that Mr. Knipstrom was getting ready to fight him. When Constable Mufford responded by resorting to what is known as soft empty hand techniques and attempted to grab a hold of Mr. Knipstrom's arm, Mr. Knipstrom pushed him back and then lunged at him. Throughout the altercation, it is apparent that Mr. Knipstrom repeatedly ignored commands to stop and quickly moved from non-cooperative to combative behaviours.

a) Use of OC Spray & Baton

When Mr. Knipstrom lunged at him, Constable Mufford attempted to push him back, but he did not move. Constable Mufford punched Mr. Knipstrom in the back, as Mr. Knipstrom was throwing "haymakers" at his head. Constable Mufford tried unsuccessfully to take Mr. Knipstrom to the ground, as Mr. Knipstrom continued yelling, punching and grabbing. At that point, Constable Mufford deployed his OC canister in Mr. Knipstrom's face, but it had no deterrent effect. Constable Labbe subsequently delivered a concentrated stream of OC spray to the side of Mr. Knipstrom's face, but it also had no effect. Constable Mufford subsequently pulled out and extended his baton and used it to block Mr. Knipstrom's punches. Constable Mufford stated that some strikes inadvertently hit Mr. Knipstrom on the head or face area, but were aimed at his arms and shoulders. I find that this explanation is reasonable, given the position of Mr. Knipstrom's head at Constable Mufford's chest. However, they too had no deterrent effect.

Throughout this series of events, Mr. McCrea and Mr. Walsh confirm that the members were on the defensive and that Mr. Knipstrom continued his pursuit no matter what action was taken. Given the level of combativeness exhibited by Mr. Knipstrom, I find that it was not unreasonable for the members to use OC spray and a baton in the manner that they did, and that it was in compliance with RCMP use of force policy.

b) Use of the CEW^{Footnote 25}

The CEW is currently classified by the RCMP as an intermediate device. At the time of this incident, weapons in this category could be used against subjects who exhibited resistant behaviour or more threatening behaviour, such as being combative. As I noted above, Mr. Knipstrom became combative upon being told by Constable Mufford to stop and to sit on the ground. In addition, other force options were utilized prior to the CEW, which appeared to have no effect. As such, I find that it was reasonable for the members to use the CEW at that stage.

After using OC spray and a baton to defend himself against Mr. Knipstrom's punches and lunges, and having minimal effect, Constable Mufford chose to deploy his CEW. He pulled Mr. Knipstrom down and towards him so that he was reaching over him and shot the probes into Mr. Knipstrom's back. He stated that they had no effect, possibly because the probes did not penetrate his thick jacket. I find that use to have been reasonable in the circumstances.

Constable Labbe stated that she believed that the CEW was the best tool available for controlling Mr. Knipstrom. She first deployed her CEW after Constable Mufford's deployment had no effect and Mr. Knipstrom had hit her in the upper chest. She indicated in her evidence at the Coroner's Inquest that Mr. Knipstrom was on the ground when she first deployed the CEW. However, she stated that because of his exhibited strength and resistance to pain techniques, she did not think that they would be able to control him enough to put him in handcuffs at that point. Consequently, she thought that the muscle incapacitation that could be achieved by the use of the CEW was the best option. While one would normally expect an officer to attempt to handcuff a subject immediately while they are on the ground, I find that explanation to be reasonable given Mr. Knipstrom's behaviours.

Constable Labbe deployed the CEW in probe mode and believed that it had some effect, as the intensity of Mr. Knipstrom's struggle seemed to lessen. She stated that he started to roll around, attempted to remove the probes, and tried to get to his feet. Constable Mufford stated that he did not see the CEW being deployed, but he heard it. Constable Labbe warned Mr. Knipstrom to stay on the ground and that if he did not, she would Taser him. He continued to try to remove the probes, and she cycled the CEW a second time. She indicates that she was surprised to see that it had no effect, and believed that it is likely because one of the probes had broken contact. Therefore, she changed cartridges. As she did, Mr. Knipstrom started towards the exit, with his back to her. She fired the probes from the new cartridge, but turned off the CEW, as backup officers entered the store. She stated that she did not hear the electrical sounds of the CEW at that point.

When Constable Kardos and other officers arrived, Constables Mufford and Labbe were telling Mr. Knipstrom to lie down on the ground. Mr. Knipstrom continued to yell and scream incoherently. He stood up and walked in the direction of Constable Kardos. Constable Kardos instructed him to stop. Mr. Knipstrom held his hands near his chest, partially clenched. Constable Kardos took out his CEW, pointed it at Mr. Knipstrom and told him to stop. He did not respond to the commands, or change his demeanour in any way, and continued to walk towards Constable Kardos. The member deployed his CEW in probe mode at the centre of Mr. Knipstrom's chest. He appeared to be unaffected. Constable Kardos recycled the CEW, and again it appeared to have no effect. Constable Kardos thought that maybe the CEW was not operating properly and decided to holster it. Constable Mufford again stated that he "heard" a CEW being deployed.

According to these accounts, Mr. Knipstrom was potentially subjected to the CEW for a total of six cycles (one by Constable Mufford, three by Constable Labbe, and two by Constable Kardos). All three members indicate that the CEW appeared to have little to no effect on Mr. Knipstrom. Statements of several witnesses, including civilian witnesses, indicated that they heard the CEW being deployed. This supports the members' belief that the CEWs were not functioning properly, either because of the interference caused by Mr. Knipstrom's coat, or some problem with the CEW itself.

Corporal Gregg Gillis, a Regional Use of Force Coordinator for the RCMP, gave a detailed explanation to the Braidwood Inquiry of the noise sometimes heard when a CEW is deployed.^{Footnote 26} In summary, he explained that when a probe gets hung up in a piece of clothing, for example, depending on how the person is standing and the movement of the clothing, there is an air gap that interferes with the ability of the electrical energy to complete the circuit and to cause neuromuscular disruption. The effects may be intermittent as the clothing moves. RCMP members are taught that a noise that is often described as a clacking sound indicates such an effect, i.e. the opening and closing of the circuit, or arcing (i.e. the electricity jumping across the air gap). The clacking sound indicates that the device is either not effective, or the effects are limited. The officer can assess the effects on the person both based on the sound emitted by the device (or lack thereof) and through visual observations of the person.

Based on the foregoing, I find that it was reasonable for the members to conclude that Mr. Knipstrom was not receiving the full effects of the CEW deployments, if any at all from some deployments. I also find that it was reasonable for Constable Labbe to recycle her CEW, and to attempt to use a second cartridge when the recycling did not appear to fix whatever was causing the CEW to have a limited effect.

Another issue arises with respect to a discrepancy between the number of times that Constables Mufford and Labbe state that they deployed their CEWs and the number of times indicated in the download reports. (Constable Kardos' statement of his deployments and the download report are consistent.) Following the death of Mr. Knipstrom, data from the CEW was downloaded on November 24, 2007.^{Footnote 27} The download reports indicated the following CEW activations for Constables Mufford and Labbe:

Constable Mufford:

• Seven-second activation ending at 2007-11-19 at 15:32:35.^{Footnote 28}
• Five-second activation ending at 2007-11-19 at 15:32:41.
• Five-second activation ending at 2007-11-19 at 15:32:49.

Constable Labbe:

• Five-second activation ending at 2007-11-19 at 15:33:39.
• Five-second activation ending at 2007-11-19 at 15:33:48.
• Five-second activation ending at 2007-11-19 at 15:33:57.
• Two-second activation ending at 2007-11-19 at 15:35:15.
• Five-second activation ending at 2007-11-19 at 15:35:27.

I note that nothing in the download data indicated that any of the units were used simultaneously.

It is impossible to determine the reason for the discrepancies with any certainty. Constable Mufford's call for backup at 15:35:35 indicates that Mr. Knipstrom had been "Tasered twice". That supports his statement that he had deployed his CEW once and heard Constable Labbe subsequently deploy her CEW. While the time of the RCMP call records appears to be later than that of the clocks of the CEWs, this is likely attributable to the two systems not being synchronized. The RCMP's use of force analysis suggests that the additional deployments may have been the result of a sympathetic nerve response. For example, Constable Mufford continued to hold the CEW in his hand while striking at Mr. Knipstrom. The report states that "his finger would have stayed on the trigger and sympathetic nerve response would allow him to engage the trigger until he dropped the CEW. Constable Mufford would have also been suffering a high heart rate which would impair his ability to maintain cognitive thinking and would impair the use of his fine motor skills." A similar response could also account for the two additional activations of Constable Labbe's CEW. As the CEW did not appear to be affecting Mr. Knipstrom, likely due to interference with the probes, it is likely that the members would not notice any such unintended activations, if that were the case.

Once the members decided to deploy their CEWs, it was incumbent on them to do so the least number of times necessary to control Mr. Knipstrom. In these unique circumstances, given the exhibited strength and endurance of Mr. Knipstrom and the fact that his jacket appeared to be interfering with the effects of the CEW, I find that the number of deployments was reasonable. I note that while the RCMP policy that was in effect at the time of the incident discouraged repeated cycling of the CEW "unless situational factors dictate otherwise,"^{Footnote 29} I find that the members reasonably concluded that the situational factors dictated otherwise in this case.

I note that the testing on the CEWs that were used during this incident revealed that one of the weapons, that used by Constable Labbe, was found to be operating above tolerance for the "Main Phase Net Charge" Operating Parameter. The Main Phase Net Charge is the net amount of charge that flows into the subject during the Main Phase. However, the report does not indicate what causal effect that would have. At the Coroner's Inquest, the RCMP's Primary Investigator stated his understanding that the impact from the irregularity would have been negligible, but that he is not able to confirm that scientifically.

Conclusion re Use of Force Options

In the context of using force, RCMP officers are taught that they must satisfy themselves that the subject possessed the Ability, Intent and Means to carry out their threat or actions. In other words:

A. Does the suspect have, or reasonably appear to have the physical ability (capability) and mobility to cause injury or death to you or others?

I. Does the suspect's words and/or actions lead you to believe they had the intent to cause injury or death to your or others?

M. Does the suspect have the means, medium or mechanism (weapon) to deliver the known or perceived threat?

Based on the findings I have made above, the members reasonably satisfied themselves that Mr. Knipstrom had the physical ability to cause injury or death to them and others, that he had the intent to do so (at least to the members), and that he had the means to do so.

As the record of communications shows, these events happened within a six-minute time frame between 3:32 and 3:38 p.m. It is important to recognize that this was a very dynamic event that required decisive action. It must also be remembered that the level of MDMA and MDA found in Mr. Knipstrom's blood indicates that he suffered from a significant degree of intoxication.

Considering all available information and taking into consideration the behaviour displayed by Mr. Knipstrom, I find that Constables Mufford and Labbe had a reasonable fear of grievous bodily harm to them or others that led them to exercise their use of force options in a manner consistent with the policies of the RCMP and the legal statutes.

Comment re Perceptions of Civilian Witnesses

Eye witness statements from Mr. Walsh and Mr. McCrea confirmed repeatedly that Constable Mufford was on the defensive from the start of the altercation and that Mr. Knipstrom was the aggressor. Asked whether they felt officers used too much force to deal with Mr. Knipstrom, Mr. Walsh stated:

"No, not at all. No, not at all. You know, when you're told repeatedly to get on the ground before any one has touched you, at all, you're told no less than, three (3), four (4), five (5) times, before anyone has put a hand on you, to sit down, or get on the ground, or on your knees, and then you charge that officer, and that officer is pepper spraying you, and tells you again to get on the ground, and you don't. And you've backed up - that officer is backed up fifteen (15) to eighteen (18) feet.

In my world, when you get that eighteen (18) or fifteen (15) feet and then he's done that - you - you have to defend yourself, and there were two (2) civilians there, myself and my manager. You got to do what you got to. And ah, ah, he was trying to control the gentleman. He was trying to gain control. He was not trying to beat the gentleman. So, I um, I don't personally have any problem with the force that he used on - on the individual. It was more than justified [sic throughout]."

In response to the same question, Mr. McCrea stated:

"No. No, I think the police did what they had to do to do it and when he first came in, when the police first came in [Mr. Knipstrom's] actions were not called for as far as I'm concerned he was putting his hands in front of his face as if he was gonna get beat on and I mean at that point in time officers didn't even have weapons out they were just asking him to calm down. And then he got progressively violent from there, like excessively violent."

These statements must be deemed objective and factual, as they were made by direct witnesses to the events who had no other interest in the matter. They should be viewed as reasonable renditions of the events that took place. They describe Mr. Knipstrom's behaviour prior to police intervention as abnormal, paranoid and jumpy. They both concur as to Constable Mufford's calm attitude when he first encountered Mr. Knipstrom and then to his progressive use of force to defend himself as Mr. Knipstrom was attacking him.

I acknowledge that among other witnesses to the events, there were several store employees who heard or saw part of the altercation from the shop area. Several of them expressed a view that police use of force may have been exaggerated and that Mr. Knipstrom could have perhaps been restrained by some other method. I note that sitting on Mr. Knipstrom was an alternative method suggested by two such persons. I also note that no such suggestions were made by these witnesses during their testimony at the Coroner's Inquest. In fact, one clarified that Mr. Knipstrom was, in fact, attacking the officer and the officer was defending himself.

In addition, there was a customer who was sitting in his car in front of the store when the incident unfolded. While he was limited in what he could see due to his being in his vehicle outside the store, he expressed a concern that the police response may have triggered the altercation given that there was nothing going on in the store when he was in there. The investigation revealed that these witnesses were not well positioned to see or hear the majority of the altercation or how it started. That combined with the frailty of human powers of observation, particularly when their perceptions would be affected by potentially unrealistic expectations about what should happen without knowing all that was actually taking place, leads me to find that their perceptions of the events that unfolded cannot be relied on.

Actions of Constable Labbe

Questions were raised by several witnesses during the course of the investigation about the level of action taken by Constable Labbe while Constable Mufford was physically engaged with Mr. Knipstrom. Both Mr. Walsh and Mr. McCrea made comments about what they perceived as a lack of support from Constable Labbe due to her failure to physically engage with Mr. Knipstrom during the altercation when Constable Mufford seemed to be getting overpowered by him. As discussed in detail above, it has been established that Constable Labbe deployed her OC spray and her CEW at Mr. Knipstrom during the altercation. There is, however, no evidence that she physically engaged Mr. Knipstrom at any point during the struggle.

The RCMP looked at the issue of the perceived inaction on the part of Constable Labbe and determined that no Code of Conduct investigation was warranted. I note that the RCMP investigators did not put the issue to either Constable Labbe or Constable Mufford in their follow-up questions. At a minimum, it would have been preferable to deal with this issue with a response from Constable Labbe with respect to the allegation. However, that being said, there is no evidence that the outcome would have been any different had Constable Labbe physically engaged with Mr. Knipstrom. While it later became clear that the CEW was not performing as expected for various reasons and was not having the desired effect, I do not find that it was unreasonable for Constable Labbe to act on her belief that the CEW was the best tool for controlling Mr. Knipstrom, as opposed to physically engaging him.

Restraint Following Arrest

RCMP policy provided direction for the members in terms of their restraint of Mr. Knipstrom. RCMP policy at the time recommended that if "excited delirium"^{Footnote 30} (ED) is suspected in a person subjected to CEW deployment, the subject should be removed from the prone position as soon as possible, when safe to do so.^{Footnote 31} The members observed that Mr. Knipstrom was displaying symptoms that fell under ED, including bizarre and violent behaviour, aggression, non-responsiveness to police presence or verbal intervention, unintelligible speech or animal sounds, unusual strength and impervious to pain. Following his arrest, Mr. Knipstrom was held in the prone position, i.e. face down on his stomach, until medical personnel arrived. He was ultimately maintained in that position until he went into cardiac arrest.

Attempts were made by EHS personnel and the members on scene to remove Mr. Knipstrom from the prone position but his strong resistance and agitation led them to leave him that way to avoid further injuries. EHS personnel indicated that they thought they would cause Mr. Knipstrom more injury by fighting with him trying to get him over on his back. Ms. Seymour noted that "there was no way we could move him." To the extent that the decision to leave him in the prone position upon leaving the scene of the altercation was that of EHS and medical personnel, the Commission has no jurisdiction to comment. However, to the extent that the subject members were involved in the decision to maintain Mr. Knipstrom in the prone position after his arrest, I find that it was reasonable for them to do so, as they reasonably believed that it would have caused more harm to Mr. Knipstrom to do otherwise.

Obtaining Medical Treatment

RCMP policy also provided direction for the members in terms of obtaining medical treatment for Mr. Knipstrom. While not requiring that medical attention be sought in the case of every CEW deployment, RCMP policy at the time required that where ED is suspected in a person subjected to CEW deployment, medical attention should be provided as soon as possible. Furthermore, policy dictated that observations about symptoms associated with ED be relayed to health care personnel as soon as possible.^{Footnote 32} As I stated in my report "RCMP Use of the Conducted Energy Weapon (CEW)"^{Footnote 33}, given the apparently disproportionate number of people with substance or alcohol abuse issues who come into contact with the police and who have an increased statistical likelihood of becoming an in-custody death statistic, RCMP CEW deployment policy should require that a member must seek medical attention for an individual who has been subjected to a CEW deployment in all circumstances.

Mr. Knipstrom was clearly injured, as he had blood on his head and face. In addition, the members observed that Mr. Knipstrom was displaying symptoms that fell under ED. As such, the members had a duty to obtain medical attention for him as soon as possible. A review of the actions by the members subsequent to the deployment of the CEW confirms that medical attention for Mr. Knipstrom was sought during the altercation, and repeatedly afterwards. At least five requests or inquiries were made by members present at the scene about EHS between 3:35 and 3:47 p.m. on the day of the incident. The medical responders confirm that the members communicated that Mr. Knipstrom was subjected to multiple CEW deployments and OC spray, and had been hit in the head with the baton. Mr. Knipstrom also continued to exhibit his ED symptoms when he was transferred into the care of the medical responders.

Conclusion

In conclusion, I find that the actions of the subject members related to the care to be provided to a person injured and/or subjected to a CEW discharge while being taken into custody in relation to Mr. Knipstrom were conducted according to RCMP policy that was in effect at the time of the incident.

In view of all the facts, law and policy reviewed above, I conclude that the RCMP members involved in the events of November 19, 2007, from the moment of initial contact until transfer to the care of emergency health personnel, complied with all appropriate policies, procedures, guidelines and statutory requirements for the arrest and treatment of persons taken into custody.

Initial Steps of the Investigation

Immediately after the ambulance left with Mr. Knipstrom, Constable Bellia locked down the store area, instructing the employees to stay in the shop area away from the scene. Three RCMP members were assigned to maintain scene security throughout the onsite investigation. As Constable Abrahamson's notes indicate, access to the scene was restricted to forensic, investigation and supervisory personnel only. Their identities and time of arrival and departure were noted. I am satisfied from the evidence that the scene was properly secured following the incident.

The Chilliwack General Investigation Section took charge of the initial investigation steps, which included securing the scene, identifying immediate witnesses, taking their statements and seizing evidence. At the request of Sergeant Manj, the Upper Fraser Valley Regional District Forensic Identification Section was contacted and Corporal Mike Vander Schaaf attended the scene at 4:05 p.m. Corporal Vander Schaaf began his investigation by gathering evidence, and taking photographs. The scene was videotaped by Corporal Dean Kraus of the Forensic Identification Section.

Staff Sergeant Gerry Falk attended the scene at approximately 3:45 p.m. At that time, the members were holding Mr. Knipstrom on the ground. He returned to the detachment at 4:00 p.m. At approximately 4:30 p.m., he was advised that Mr. Knipstrom was not breathing and he told Sergeant Dixon to call the Integrated Homicide Investigation Team^{Footnote 36} (IHIT) and get them to the scene in case Mr. Knipstrom did not survive. That was done in accordance with RCMP policy that requires that an "independent" investigation be conducted immediately when someone being arrested or in RCMP custody/care is seriously injured or dies.

At approximately 4:41 p.m., Sergeant Dixon requested that dispatch call out IHIT. However, it was subsequently determined that it would not be appropriate to use the local IHIT due to concerns about impartiality, and so the "E" Division Major Crime Unit was assigned to take over the investigation at approximately 5:55 p.m. An integrated team of investigators from the "E" Division Major Crime Unit, the Surrey IHIT, the Abbotsford Police Department, and the Vancouver Island Integrated Major Crime Unit was assembled.^{Footnote 37} The Forensic Identification Section was authorized to continue with their examination of the scene. At that point, only photographs had been taken.

The integrated investigative team arrived in Chilliwack at approximately 9:00 p.m. After a debriefing at the detachment, the team attended the scene. At approximately 12:50 a.m., Corporal Vander Schaaf debriefed the investigative team. Scene control was turned back over to the store owner at approximately 1:20 a.m. on November 20, 2007.

Major Case Management

The Major Case Management (MCM) model is "a methodology for managing major incidents which provides accountability, clear goals and objectives, planning, utilization of resources and control over the speed, flow and direction of the investigation."^{Footnote 38} MCM is managed by the Major Case Management Team (MCMT) illustrated by the "command triangle", which includes the Team Commander (formerly called Team Leader), the Primary Investigator and the File Coordinator. The Team Commander has ultimate authority, responsibility and accountability for the MCMT, its resources (human and physical) and its mandate. The Primary Investigator controls the overall investigative process. The File Coordinator is responsible for the control, supervision, organization and disclosure of the file documentation.

The command triangle roles were assigned to members of the "E" Division Major Crime Unit. Staff Sergeant Randy Hundt assumed the role of Team Commander and assigned Sergeant Matthew Toews as Primary Investigator and Corporal Karina Desrosiers as File Coordinator. Corporal Jennifer McDonald later took over the role of File Coordinator. They were all trained and qualified members with experience in serious crime investigation.

All members of the investigation team completed an impartiality questionnaire developed by the RCMP to insure the highest possible level of objectivity by the members involved in such a case.^{Footnote 39} This procedure calls for full disclosure of any relationship past or present investigators may have or have had with members involved in the incident under scrutiny. All questionnaires are reviewed by the Team Commander in order to decide if an investigator should be excluded from the team on the ground that there may be a perception of conflict of interest on his part.

Although some members had had contacts in the past with members of the Chilliwack Detachment during training or investigations, none were so significant as to present a risk of conflict of interest and no member of the investigation team was acquainted with Constables Mufford, Labbe or Kardos.

My review of the investigation revealed that it was managed in accordance with the MCM principles. This investigative method ensures an evidence-based approach, enhancing objectivity and efficiency of the command structure.

Witnesses

Statements were taken from the civilian witnesses on scene immediately following the incident. A number of those statements were started prior to Mr. Knipstrom going into cardiac arrest. Between November 19th and 22nd, the investigators conducted over 60 interviews with police and civilian witnesses, and collected physical evidence. The neighbourhood was canvassed in an effort to locate additional witnesses and video surveillance evidence that could shed more light on the events leading up to the altercation. There is no indication that the investigators failed to locate or interview the relevant witnesses in a timely manner.

Member Statements

As part of their duties, police officers are required to document their involvement in events which occur as a result of their employment and to provide that documentation to their employer. Such documentation must also be disclosed by operation of law to defence counsel or as directed by the courts with respect to judicial processes.

As I noted in the Ian Bush matter:^{Footnote 40}

"As a general rule, persons in Canada are under no legal obligation to provide a statement to the police. The police may request that a person provide a statement to them during an investigation but, absent some statutory or common law duty to comply, they have no means to enforce the request. If the police have reasonable grounds to arrest a person and keep them in custody, the police may attempt to interrogate the person in circumstances where the person's liberty has been taken away from them, but there is still no requirement that the person cooperate with the police.

RCMP members are required to provide an "accounting" of their activities when directed to do so. This is termed a "duty to account" statement. The authority to compel RCMP members to provide a duty to account statement is derived from the fact that RCMP members are required to obey a lawful order from another RCMP member who is superior in rank or who has authority over the member. There is no similar requirement for ordinary citizens in the ordinary course of police investigations.

Given the mandatory nature of duty to account statements, they are likely not voluntary and not admissible in criminal proceedings. It is clear that the duty to account is primarily viewed as an administrative process. For example, it may be used for the purpose of code of conduct proceedings. Although the duty to account is not specifically considered part of the criminal investigation process, this type of statement can provide general information from which to commence a criminal investigation."

Immediately following the incident, Constable MacIntosh was instructed by Sergeant Manj to return to the detachment with Constables Mufford and Labbe to take their statements. He reported that there was no discussion of the incident during that time, just some discussion of their well-being. He took photographs of and seized the clothing of Constable Mufford and obtained a taped statement from Constable Labbe. Constable Mufford provided his statement in the form of a written Duty Report that same day, which notes a time of 20:16; he also provided a revised report on December 21, 2007. There is no indication of whether or not Constable MacIntosh requested a taped statement at that time (which would have allowed for questions) or why Constable Mufford instead chose to provide his statement in written form. After their initial reports, both Constables Mufford and Labbe opted to provide only written statements through their legal counsel, as they were entitled to do. The record indicates that investigators attempted to set up face-to-face interviews with Constables Mufford and Labbe, which were denied. However, the investigators did put additional questions to the members, to which they provided written responses.

While it would have been preferable to have the benefit of a taped interview/statement from Constable Mufford, and a further taped statement from both members to address any follow-up questions (which would inevitably have resulted in more fuller information and clarification from both), I find that the investigators made reasonable efforts to obtain same and that the members were within their rights to deny those requests.

Written and audio statements were obtained from the remaining members who attended the scene during the incident, no matter how minor their involvement.

Propriety of Involvement of the Staff Relations Representative

Incidents of this nature continue to bring into question the propriety of the involvement of the Staff Relations Representative (SRR). Duty to account statements related to serious incidents are at times taken following a meeting between the SRR and the member involved. That practice can sometimes call into issue the credibility of the statements that are then given.

Corporal Baier, who was at the scene of the incident after Mr. Knipstrom had been taken to the ground and was being restrained, met with Constables Mufford and Labbe in his role as SRR. He notes the following in his statements about what occurred on the day of the incident:

"... in my capacity as Staff Sub, Staff Relations Representative for the Chilliwack area, ah, I spoke ah, to Constable MUFFORD and Constable Labbe. No conversation occurred regarding the incident. The entire conversation dealt with their well-being. Um, who was at home waiting for them that night? How would they get home? ... Superintendent BRINE ah, indicated that ah, he was uncomfortable with the fact that I may be a potential witness and I was in the room talking to some members that were directly involved in the use of force. Spoke briefly about the role of the Staff Relations Representative and also spoke briefly about the members duty to account, and then went back into the room and advised the members that ah, reviewed the duty to account. What the expectations of them were. "

Superintendent Brine's notes confirm that at approximately 5:25 p.m. he had a discussion with Corporal Baier to clarify that he was not discussing the incident with the members. Corporal Baier indicated that his rationale for meeting with the involved members was his concern for their emotional well-being. He also indicated that he did not discuss any details of the incident with the involved members on the night of the incident.

Investigative basics are that witnesses should be separated immediately to remove the potential opportunity for them to tailor their evidence or to concoct a version of events. Meetings such as the meeting with Corporal Baier concern me because of the potential for inappropriate influence or interfering with an investigation. I note that Constable Labbe's statement was taken prior to her meeting with the SRR. However, the first report made by Constable Mufford notes a time that follows the meeting with the SRR. I am concerned that the meeting could have influenced Constable Mufford's statement, and about the fact that Constables Labbe and Mufford were in the same room prior to Constable Mufford completing his statement. It is a further concern that Corporal Baier was a witness to some of the events that took place, albeit the events following Mr. Knipstrom's initial restraint.

SRR attendance and discussion with the members involved prior to the members completing statements with respect to serious incidents could result in filtered information being provided to the investigator. The further danger is the potential for the appearance of interference, or at worst actual interference, with an ongoing investigation. To paraphrase an old maxim, an impartial investigation must not only be done, it must be seen to be done. This is particularly true when the police are investigating the police. The investigator is at liberty to conduct the interview of the involved member without the SRR potentially having first discussed the facts of the situation with the member. I find that an SRR should not have been allowed to meet alone with the members prior to the completion of the duty to account statements.

RCMP guidelines do contemplate the duty to account statement. The RCMP "E" Division Internal Investigations Guidelines^{Footnote 41} state:

"All members are accountable to the RCMP for their actions during the course of their duties. Included in this accountability is an obligation to provide relevant information when requested

This duty to account should not be confused with providing a voluntary statement to an investigator. The duty to account could simply encompass the completion of standard paperwork such as form 1624 or answering basic questions pertaining to an incident that could be expected from any supervisor or fellow member in other investigations. The request for a voluntary statement made to a member subject of a Part IV investigation should be separate and distinct from an investigator's request for information to satisfy the duty to account or the RCMP's "right to know". The voluntary statement may encompass more detailed questioning by the investigator pertaining to the alleged incident."

However, this explanation of some of the rights and obligations of implicated members is aimed at investigators, not at the implicated members. The requirements of the duty to account statement must be clear to all RCMP members. That is not currently the case.

If there is a need to explain a member's obligation to complete the statement, that explanation would more appropriately be given in the presence of the investigator. However, the issue of the duty to account statement has arisen previously and I have recommended the need to address the propriety of the involvement of the SRR in that context. In my decision in the Ian Bush matter,^{Footnote 42} my recommendation and the response of November 2, 2007 from the RCMP Commissioner were as follows:

"Recommendation

The RCMP develop a policy that dictates the requirement, timeliness and use of the duty to account that members are obliged to provide."

Commissioner Elliott responded:

"I support this recommendation and will ask the Director, Community, Contract and Aboriginal Policing Services, to ensure that this is done in a timely manner."

To date, it has not been confirmed with the Commission that this recommendation has been implemented.

Appropriateness of assigned interviewers

As noted above, the investigation started immediately following the incident by officers at the scene, which was approximately two hours before investigators from the Major Crime Unit were assigned to the matter. This raises the question of the role of on-scene RCMP members in major cases involving the investigation of police conduct. In the Ian Bush decision, I recommended that the RCMP develop policy to provide direction to on‑scene RCMP members in such cases, including the need to ensure real and perceived impartiality. The Commissioner agreed with that recommendation. However, I note that my Final Report in that matter was released subsequent to the incident involving Mr. Knipstrom.

This matter was further complicated in that it was not determined that the investigation would be conducted by a special investigation team until after Mr. Knipstrom went into cardiac arrest. However, at a minimum, steps should have been taken to avoid any real or perceived lack of impartiality from the beginning.

a) Rank of Interviewer

I have recently commented on the inappropriateness of a member involved in an incident being interviewed by a member who is of the same or lower rank.^{Footnote 43} It risks the potential for intimidation of the investigator by the higher ranking subject member. The possibility also exists that the investigator could potentially be supervised at a later date by the subject member, thereby creating the potential for a junior ranking investigator affording the higher ranking subject member preferential treatment in favour of future considerations. This potential conflict of interest must be taken into consideration. However, where a criminal investigation is managed under the MCM model, it is sufficient for the Team Commander to be of a higher rank than that of the subject member. I note that once the MCMT was formed, the Team Commander was of an appropriate higher rank.

However, prior to the formation of the MCMT, many of the subject members were interviewed. Unfortunately, a number of those interviews were conducted by another member of the same or lower rank. For example, Constable Labbe was interviewed by Constable MacIntosh. Constable MacIntosh was also assigned to interview Sergeant Preto. While this type of interviewing technique did not have any negative impact on the outcome, the potential did exist for a conflict of interest (either real or perceived). Where the MCM model has not been employed, interviews should be conducted by a member who is at least one rank higher than that of the subject member.

b) Number of Interviewers

I commented in the Police Investigating Police report that assigning a single investigator to a member investigation is a particular concern. Interviewing anyone involved (particularly the subject member) is best conducted by a two-member team. Prior to the formation of the integrated investigative team, Constable Labbe was interviewed by a single member, who, as noted above, was of the same rank as her. Ideally, two officers will conduct such interviews. I note that two members did generally conduct the witness interviews once the integrated investigative team was in place.

c) Connection of Interviewer to the Incident

I note that Constable Kardos was instructed to interview the two main civilian witnesses immediately following the incident; however, given that he was involved in the application of force against Mr. Knipstrom, I find that it was inappropriate for Constable Kardos to conduct those interviews. While Mr. Knipstrom had not gone into medical distress at the time of the interviews, the incident was sufficiently serious and there were a sufficient number of other members available that it would have been more appropriate for another member who was not involved in the incident to have conducted those interviews.

RCMP policy specifies that a member shall not investigate a complaint where that member may be in a conflict of interest situation.^{Footnote 44} Section 37 of the RCMP Act also requires that members avoid actual, apparent, or perceived conflict of interest. While the term "conflict of interest" is not defined, it should be clear that any member involved in the incident or who knows the subject members would be in a conflict of interest to take part in the investigation. It was a conflict of interest for Constable Kardos to interview any of the witnesses to the incident.

d) Summary

Ideally, no interviews would have been conducted before the formation and arrival of the MCMT. However, given that the decision to call in the integrated team was not made until after Mr. Knipstrom went into cardiac arrest, the interviewers should have been persons who had no involvement in the incident, and who were ideally of a higher rank than that of the subject members. In addition, interviews of anyone involved (particularly the subject members) are best conducted by a two-member team.

CEW Testing

A CEW Download Report, dated November 24, 2007, was prepared by Staff Sergeant Steven Wade of the Langley RCMP Detachment, based on data downloaded from the three CEWs used in the incident. The details of that report are referred to in the use of force analysis set out above.

I note that a decision was not made to send the CEWs for independent testing to determine their functionality until nearly a year following the incident. Such testing looks at operating parameters such as the voltage, current and pulse duration. At the time of the incident, RCMP policy provided that CEWs were to be tested when:

1. someone is seriously injured or dies when a member resorts to lethal force because a CEW was ineffective or malfunctioned;
2. a member is seriously injured or dies as a direct or indirect result of a CEW malfunction; or
3. any incident in which it is in the public interest or the member's interest to determine the working state of a CEW.^{Footnote 45}

The first and second situations clearly do not apply in the circumstances, as lethal force was not used and no member was seriously injured. The third situation arguably applied, but involves the exercise of discretion. In my view, it would have been preferable to have immediately sent the CEWs for independent testing. However, the RCMP's policy at the time was inadequate and did not provide much guidance to investigators. An example of the policy's inadequacy is the lack of definition of "malfunction", and the fact that it would be difficult for a member to determine whether an injury or death occurred as a result of a malfunction absent testing. In addition, does "indirect result" of a malfunction mean anytime a CEW is deployed in those situations? Finally, there is no guidance as to what type of situations would generally fall under the public's interest.

As it happened, policy changes were in the works as of November 2008, and the investigators were instructed to have the CEWs pulled and tested. Several months later, the new policy came into effect, which provides that all CEWs be sent for independent testing when an incident involves injury requiring medical treatment or death proximal to the use of a CEW. Testing is now an automatic requirement for in-custody deaths involving the use of a CEW.

Investigative Theory and Examination of Mr. Knipstrom's Background

While trying to understand what had led to the aggressive behaviour displayed by Mr. Knipstrom, investigators examined his past encounters with police and interviewed his friends and relatives. This is not uncommon in an investigation that strives to explain an apparently unprovoked attack by a person on a police officer preceded by a bizarre behaviour. Investigators were able to profile his mental health as well as his drug and alcohol consumption. I note that this must not be done with the objective of laying responsibility of the consequences of the altercation on Mr. Knipstrom, nor should it appear to be. In my view, the investigators remained within the appropriate limits for collecting and using such information to help explain Mr. Knipstrom's behaviour that day.

As indicated above, a number of members involved in the incident expressed an opinion that Mr. Knipstrom was displaying symptoms consistent with ED. As a result, the investigators looked at the role ED may have played in the incident from very early on. (I note that the RCMP has since removed any references to ED from their policies.) The RCMP communicated their theory that ED may have played a large role in the incident to the coroner's office, provided information on new or specialized examinations that were available to determine a possible ED-related death, and provided the names of several American individuals experienced in the field.

The investigative file indicates that Sergeant Toews appeared to recognize that confirming whether Mr. Knipstrom was experiencing ED would add to the existing evidence but that "[c]ategorizing the behaviour exhibited by [Mr. Knipstrom], would not have an impact upon whether or not the action taken by the responding members was appropriate." I find that the investigators did not place an inappropriate amount of focus on a diagnosis of ED as a way to explain Mr. Knipstrom's death.

Communications with the Coroner Prior to Mr. Knipstrom's Death

It is in the public interest that sudden or unexplained deaths are investigated, and in the case of an in-custody death, a coroner's inquest is mandatory in the Province of British Columbia.^{Footnote 46} The coroner is responsible for determining the identity of the deceased and ascertaining the facts surrounding a death, i.e. how, when, where and by what means the deceased died. It is a fact-finding, not fault-finding, process. Police officers are sometimes required to assist, by making reports or carrying out enquiries. Police officers also have a duty to investigate any suspicion that a criminal offence may be linked to or caused the death.

Police officers are required to report the facts and circumstances surrounding the death of any person who dies while in their custody, or as a result, directly or indirectly, of an act of a police officer performed in the course of his or her duty.^{Footnote 47} Consequently, the RCMP had a duty to report the facts and circumstances of the incident with Mr. Knipstrom to the coroner upon his death. In this case, the RCMP chose to report the incident to the coroner prior to Mr. Knipstrom's death.

On November 20, 2007, after learning that Mr. Knipstrom's condition had taken a turn for the worse, lead investigator Sergeant Toews contacted the coroner's office to advise them that Mr. Knipstrom may not survive the night. He was advised by the coroner's office that it was not necessary to provide notice that a subject may expire. Sergeant Toews went on to discuss the ED implication in the case and inquire about the possibility of conserving the subject's brain for examination of ED indicators. Coroner Dekkers responded that he would look into the science behind the request and determine the best course of action at that point. On November 23rd, Sergeant Toews spoke to Coroner Doug Richmond and discussed the issue of possible post mortem examinations if Mr. Knipstrom expired, including possible brain examination by an American ED specialist. He arranged to send Mr. Richmond background material on this issue for him to review and consider.

Although input from the police is very important to the coroner's work, there is always a danger that such communications may be perceived as an undue attempt to influence the coroner in its findings. However, in my view, Sergeant Toews' actions did not interfere with the independence of the coroner's office in terms of determining what examinations to conduct and were not unreasonable in the circumstances.

Independent Officer Review

The circumstances related to the death of Mr. Knipstrom were also reviewed as part of an Independent Officer Review (IOR). An IOR is an internal administrative review. I note that in my report on the Police Investigating Police, I recommended that administrative reviews be undertaken in all cases of serious injury, sexual assault, or death. The mandate of the reviewer is to conduct a fact-finding inquiry to ensure that:

• a thorough, professional and unbiased investigation is conducted;
• training, officer safety skills, approved procedures and tactics and policy are appropriate and were followed;
• appropriate information has been provided to agencies such as Crown counsel and/or the Coroner's Service; and
• the member(s) conduct is in accordance with the RCMP Act and the RCMP regulations.

An initial review determined that the investigation was conducted in a thorough, professional and unbiased manner. However, a final review was to be completed following the Coroner's Inquest, and I understand that that is underway.

Review by an Outside Agency

In previous cases involving an in-custody death, an outside police agency has been asked to conduct an external independent review of the death and to comment on whether a thorough, professional and unbiased investigation had been conducted by the RCMP.^{Footnote 48} That was not done in this case, and there is no indication in the record of the reasons why an outside review was not performed. I make no findings or recommendations of whether the RCMP should do so, as I have recently stated my position that such investigations be conducted by an outside agency in the first instance.^{Footnote 49}

No Review by Crown Counsel

In British Columbia, the police require the approval of Crown counsel before laying charges. One of the roles of Crown counsel is to approve and conduct, on behalf of the Crown, all prosecutions of offences in the Province.^{Footnote 50} In determining whether a charge is to be approved for prosecution, the substantial likelihood of conviction standard is used. A substantial likelihood of conviction exists where the prosecutor is satisfied that "there is a strong, solid case of substance to present to the court."^{Footnote 51}

I note that there had been a practice in the past for the RCMP to sometimes forward a Report to Crown Counsel without making recommendations with respect to charges, with the idea that Crown counsel could make an impartial determination. However, I understand that that practice is no longer accepted by Crown counsels in British Columbia and that they will not deal with reports that do not make a recommendation with respect to whether or not to lay charges.

Depending on what information is revealed by the investigation, the RCMP may submit a Report to Crown Counsel. RCMP investigation guidelines provide that "[i]f there is evidence to support a prosecution, consult Crown counsel."^{Footnote 52} The investigators in this case chose not to submit a Report to Crown Counsel. However, I find that there was no evidence to support a prosecution and that it was reasonable not to send it to Crown counsel given the high standard for the approval of charges.

Timeliness of Investigation

Another area of concern regarding the investigation is the amount of time it took to complete the investigation. In my Police Investigating Police report, I set out a baseline definition of what constitutes a "timely" response by the investigative team. The key features of appropriate timeliness of member investigations include the following:

1. Member investigation undertaken and completed in six months (or less).
2. Investigations, if possible, should not exceed one year.^{Footnote 53}
3. Immediate dispatch of necessary personnel where timely response required.

The key aspects of the investigation were completed within six months of the incident. The physical evidence gathering part of the investigation was completed within a 24-hour period. Expert reports were submitted within the generally accepted time frame for those types of analysis. By the end of April 2008, the only outstanding expert report was the pathologist's report, which was not within the RCMP's control and was received on September 3, 2008. The Knipstrom family was briefed on the investigation on October 14, 2008, and told that the investigation ruled out any criminal behaviour on the part of the subject members. While some "housekeeping" was performed with respect to the investigation file after that date, the investigation was, for all intents and purposes, concluded. I am satisfied that there was no unreasonable delay in the investigation, and that it was completed in a timely manner.

However, I note that there was a delay in briefing the three members who were the primary subjects of the investigation—Constables Mufford, Labbe and Kardos. Their briefing was held on December 10, 2008, nearly two months after the briefing of the Knipstrom family. There is no explanation given in the record for the delay, although there was some indication that at least one member (Constable Mufford) had been told by the Team Commander, Staff Sergeant Hundt, some months earlier that he was cleared of any wrongdoing. It is not clear whether the other members received a similar communication. I would like to emphasize the importance of notifying not only the family but the subject members of the results of the investigation as early as possible to allow them to deal with the outcome (good or bad) and to move forward. This is particularly critical when an investigation questions the propriety of a member's conduct that has either directly or indirectly led to serious injury or death.

I also note that the Final Report, while drafted several months prior, was not finalized until March 11, 2009. I understand that where a conclusion has already been reached that there has been no criminal wrongdoing, and where no report is being submitted to Crown counsel, there may be a tendency to give the Final Report a lower priority. However, it is important that the Final Report be completed in a timely manner to, at a minimum, assure the public that the matter has been treated as a priority and that the investigation team was diligent in their efforts. Delays in the delivery of the final investigation report, which officially signifies the conclusion of the investigation, can undermine the credibility of the investigation and the report.