Commission's Final Report: Chairperson-Initiated Complaint and Public Interest Investigation Into the Coquitlam Use of Force Incident Involving Mr. Myung Lee and Ms. Kap Su Lee

Related Links

• CRCC Interim Report
  February 28, 2019
• RCMP Commissioner’s Response
  February 25, 2021
• CIC News Release
  October 31, 2016

Royal Canadian Mounted Police Act
Section 45.76(3)

Overview

[1] A hotel manager called the Coquitlam RCMP to report that a fight had broken out during a contested condominium vote in the hotel's conference room. The responding RCMP members decided that no assault had taken place but the situation was still tense given the animosity between two voting groups over allegations of voter fraud. The police decided to cancel the meeting and told the hotel security guard to take the ballot box and secure it in the hotel front desk safe.

[2] The situation escalated because many voters, including an elderly couple, wanted the police to take custody of the ballot box until the organization's lawyers could recount the votes. The RCMP members directed the participants to leave the meeting and not to interfere with the security guard or they could face arrest. The elderly couple—Mr. Myung Ju Lee and Ms. Kap Su Lee—were ultimately arrested and escorted out of the hotel via the staircase, while their young granddaughter whom they were babysitting watched.

[3] Mr. Lee and one of the police officers tumbled down the stairs during the escort. As they were exiting the hotel, one of the RCMP members seized a cell phone from a witness and threw it on the ground. The arrests and escort out of the hotel were captured on cell phone video, which was posted to YouTube and generated media interest in the incident.

[4] The RCMP asked the New Westminster Police Department (NWPD) to investigate the actions of the RCMP members and Mr. and Ms. Lee. The NWPD did not recommend criminal charges against the RCMP members. However, the NWPD recommended that charges be laid against Mr. and Ms. Lee. Despite this recommendation, the Crown Attorney's office did not approve criminal charges.

[5] The RCMP also investigated Constable Sébastien Fortin's conduct pursuant to Part IV of the Royal Canadian Mounted Police Act^{Footnote 1} ("the RCMP Act"), and concluded that he had not contravened the Code of Conduct.

[6] On October 30, 2016, the Civilian Review and Complaints Commission for the Royal Canadian Mounted Police ("the Commission") decided that it was in the public interest for the Commission to initiate a complaint and investigate the incident to determine:^{Footnote 2}

1. Whether the RCMP members or other persons appointed or employed under Part I of the RCMP Act involved in the events of October 27, 2016, complied with all appropriate training, policies, procedures, guidelines and statutory requirements; and
2. Whether the RCMP's national, divisional and detachment-level training, policies, procedures and guidelines relating to such incidents are reasonable.

[7] The Commission investigated and found that the RCMP members did not sufficiently articulate reasonable grounds to justify the arrest of the couple, and that given the unreasonable arrest the use of force was unjustified. The Commission also found that the escorting of the elderly couple out of the building via the stairway rather than the elevator increased the risk of injury. The Commission recommended that the RCMP members receive operational guidance.

[8] The Commission further found that the RCMP members did not document taking reasonable steps to ensure the well-being of the granddaughter, and that RCMP policy dealing with ensuring the welfare of children whose parents or caregivers are arrested did not provide adequate guidance. It recommended that the RCMP members receive operational guidance and that the RCMP review its policies relative to ensuring the welfare of children whose parents or caregivers are arrested or otherwise indisposed.

[9] Finally, the Commission found that there was no legal authority for the RCMP members to take and throw the witness's cell phone while she was taking pictures. The Commission recommended that the RCMP apologize and offer to reimburse the witness for the damage to the cell phone. It also recommended that the RCMP member be given operational guidance.

[10] The RCMP Commissioner agreed with the Commission's findings and recommendations regarding the granddaughter, the witness cellphone, and the ineffectiveness of the RCMP members in de-escalating the situation. The Commissioner did not agree that the arrests were unreasonable or that the use of the stairway was inappropriate in the circumstances.

[11] As explained below, the Commission reiterates its interim findings and recommendations in the present final report.

Investigation

[12] The Commission is an independent agency that impartially reviews complaints made by the public about RCMP member conduct. It is not part of the RCMP.

[13] The Commission relied on the following evidence to reach its decision:

• The police file into the original incident
• The RCMP's Code of Conduct investigation
• The New Westminster Police Service's investigation
• The Commission's investigation into the complaint
• Relevant law and policies

[14] On February 28, 2019, the Commission sent an interim report to the RCMP Commissioner, as required by the RCMP Act.

[15] On February 25, 2021, the RCMP Commissioner replied to the Commission and explained what would be done about the case. The Commission considered the response and is now issuing this final report.

Decision

[16] The Commission has reviewed the RCMP Commissioner's response to its interim report, the details of which are discussed later in this report. However, the Commission finds it important at the outset to express its concern with the RCMP Commissioner's continued practice of reassessing the evidence to impugn the findings of the Commission, particularly where there are no new facts or evidence to be considered.

[17] The Supreme Court of Canada recognized the importance of this issue in Wood v Schaeffer,^{Footnote 3} where it discussed "police investigating police" and referenced numerous reports that "underscored the importance of creating an independent body charged with transparently investigating whether what happened reflected a breach of the public's trust or not."

[18] The Commission is just such an independent body, which has the mandate to conduct its own independent investigation and assessment of the evidence. To that end, it is empowered to make findings of fact and law. The RCMP Commissioner's response is not meant to be an appeal or a rebuttal of the Commission's work. This defeats the concept of independent oversight so critical to establishing public trust and confidence in the RCMP. Rather, the RCMP's role is limited to indicating what actions it will take in response to the Commission's report. In cases where the RCMP decides not to act on any finding or recommendation, it has a responsibility to provide reasons.^{Footnote 4} These reasons, barring the discovery of fresh evidence that was not before the Commission, are not a venue for relitigating the facts or law. Rather, they offer the RCMP the opportunity to explain why it is unable or unwilling to take actions recommended by the Commission.

[19] In this case, the RCMP Commissioner has agreed to take the following steps in response to the Commission's interim report:

• Constable Soumia Abboub and Constable Fortin will be directed to read this report to emphasize the value of using proper problem-solving techniques to resolve calls for service.
• Constable Abboub and Constable Fortin will be reminded of the importance of clearly articulating grounds of arrest.
• Constable Abboub, Constable Fortin, and Constable Kevin Gibson will receive operational guidance on the importance of ensuring the well-being of children after the arrest of caregivers.
• The RCMP will review its policies relative to ensuring the welfare of children whose parents or caregivers are arrested or otherwise indisposed.
• The RCMP will apologize to H. Y. for Constable Fortin throwing her cell phone on the ground.
• The RCMP will offer to reimburse H. Y. for the damage to the cell phone.
• Constable Fortin will receive operational guidance concerning his actions with respect to H. Y.'s cell phone.

Facts

[20] On October 27, 2016, at 10:30 p.m., a 911 call was made requesting that the RCMP attend a disturbance at a Best Western Hotel in Coquitlam, British Columbia. J. C., a strata property manager, made the 911 call; he informed the call taker that a fight had broken out amongst approximately twenty people concerning a strata meeting taking place at the hotel.

[21] Upon arrival, the attending RCMP members learned that one group of voters at the meeting felt that the vote had not been conducted fairly, and that an argument had ensued between Mr. Lee and G. J. One of those present had taken a video of the argument on his cell phone and showed the video to the attending members. The police officers determined that no assault had taken place but that the situation necessitated that the meeting be cancelled and the ballot box secured at the hotel.

[22] The police directed the hotel security guard, D. C., to take the ballot box and secure it in the front desk safe. This resulted in a second dispute occurring because Mr. Lee and his voting group did not want the hotel employees to take the box. They preferred instead that the police take custody of the ballot box until the organization's lawyers could recount the votes.

[23] Mr. Lee's wife tried to seal the ballot box and affix her signature to it while the hotel security guard was taking it out of the room. The RCMP members directed the participants to leave the meeting and not to interfere with the hotel security guard or else they faced arrest. Although there is some difference in the witness descriptions of what subsequently occurred, the result was that Mr. and Ms. Lee were both arrested and escorted out of the building via the staircase. Mr. and Ms. Lee happened to be babysitting their five-year-old granddaughter, who was present during the arrests and tried to help her grandparents. The arrests were captured on cell phone video, which was posted to YouTube, generating media interest in the incident.

[24] Mr. and Ms. Lee were examined by paramedics and taken to the Royal Columbian Hospital. They were released shortly thereafter and were both issued a promise to appear for a future court appearance. No charges were ultimately laid.

[25] The Commission has identified six RCMP members as having relevant involvement in the incident on October 27, 2016:

• Constable Soumia Abboub was the initial responding police officer who arrested Ms. Lee and assisted in the arrest of Mr. Lee.
• Constable Kevin Gibson was one of the initial police officers responding to the call from the hotel. He assisted with the arrest of Ms. Lee and released her on a promise to appear.
• Constable Sébastien Fortin was also one of the initial members responding to the incident. He arrested Mr. Lee for causing a disturbance and was seen on the video going down the stairs with Mr. Lee. He also removed a cell phone from H. Y., who was filming the arrest, and then threw the cell phone on the ground.
• Constable Benoit Brooks attended the hotel after Mr. and Ms. Lee were taken into custody, and assisted the paramedics.
• Constable Yoojin Lee attended the scene subsequent to the arrest of Mr. and Ms. Lee and assisted with English–Korean translation. Constable Lee attended the hospital with Mr. and Ms. Lee and released Ms. Lee on a promise to appear.
• Constable Porter attended the scene subsequent to the arrest of Mr. and Ms. Lee; he also attended the hospital.

Analysis

[26] The Commission has identified four main areas of concern respecting the conduct of the attending RCMP members. These include the inability to effectively manage the situation once the members arrived on scene, the arrest of Mr. and Ms. Lee, the lack of care for their granddaughter, and the removal of H. Y.'s cell phone.

Inability to prevent escalation of situation

[27] The first area of concern is the inability of the RCMP members to prevent the situation from escalating to the point where arrests were necessary. It should be noted that there was no fighting when the RCMP members arrived, although several witnesses described the atmosphere as being tense.

[28] After arriving at the scene, Constable Abboub reviewed the cell phone video provided by a meeting participant in which Mr. Lee was aggressive after complaining about voting irregularities. However, numerous witness statements indicate that, although Mr. Lee had been upset and aggressive prior to the arrival of the members, the situation had become calmer by the time police arrived.

[29] The witness statements indicate that once police had reviewed the video, they made a decision to cancel the meeting. Constable Abboub's police report states that it was a police decision to end the meeting due to the arguments and fighting and that the organizers agreed. The decision was also made to have the hotel security guard take the ballot box to the front desk safe, contrary to the expressed wishes of Mr. and Ms. Lee and their supporters. This was the catalyst for the disturbance that then occurred.

[30] It is clear to the Commission that the main concern of Mr. and Ms. Lee, as well as that of their supporters, was their desire for the ballot box containing the votes to be secured in a fair manner. They did not trust J. C., the strata's property manager, or his representative and therefore they wanted the police to take control of the ballot box until the involvement of lawyers. The police had the full attention of the attendees at that time and could have used the opportunity to explain calmly what steps police were going to take to ensure a peaceful end of the dispute, as well as the reasons underlying this decision. The approach taken instead was to tell the people present to be quiet or face arrest.

[31] Once the hotel security guard had taken possession of the ballot box, the situation became more difficult for the police to manage. Ms. Lee was concerned that there would be tampering with the ballot box. She attempted to sign the box to be able to confirm whether it was opened prior to the lawyers receiving it. The end result is aptly described in Constable Abboub's police report, as follows:

The situation started escalating pretty fast when Strata member Myung LEE and his wife Park KAPSU refused to cooperate with Police and resisted to Police when placed under arrest for Causing a disturbance. LEE and PARK were arrested for Assaulting Police Officers [sic throughout].

[32] The police officers recognized the importance of the ballot box but refused to take possession of it. Instead, they asked the hotel security guard to take the ballot box and put it in the hotel safe. This resulted in Ms. Lee attempting to sign the box and in the security guard being accosted on his way out with the ballot box.

[33] From the perspective of Mr. and Ms. Lee, it appeared that their property interests and a fair vote were being negatively affected by the arbitrary decision of the police, and it is understandable why they became emotional and upset. It also resulted in a seemingly innocuous corporate voting process becoming an incident tainted with the arrest of two elderly persons, who had no previous criminal involvement with law enforcement, for violations of the Criminal Code.

[34] The Commission has been unable to locate any specific RCMP policy governing the taking and securing of ballot boxes at these types of private owner meetings. The Commission is satisfied, however, that if the police had taken the ballot box and secured it until the corporation's lawyers could have properly counted the votes, it is very unlikely that this unfortunate incident would have occurred.

[35] The RCMP routinely seizes items in the course of its duties that are not directly related to a criminal investigation. Moreover, not every case of voter fraud allegations will require a seizure of a ballot box. This is a decision that requires flexibility and a focus on constructive problem solving by the attending members. The benefits from such an approach include an appreciation from all parties that the police acted in an unbiased manner and that the interests of all parties were protected. This approach is also consistent with the RCMP's own operational framework of CAPRA,^{Footnote 5} which is used to support the concept of innovative problem solving in addressing situations such as that faced by the attending members.

[36] The RCMP provides the following explanation on its website:

The CAPRA Model is an operational application of the RCMP's vision and mission. It combines the RCMP's commitment to communities and clients, problem solving in partnership and continuous learning. The CAPRA Model helped to define the competencies necessary for effective community policing. . . . A client-centred approach emphasizes the importance of organizing policing around the needs of the community and individual clients rather than around policing disciplines or functions. . . . The client-centred curriculum is designed to teach policing through integrated, life-like situations where the needs, expectations and demands of clients vary. Problem solving approaches are based on the assumption that the relatively automatic application of rules and procedures will be inadequate for achieving the more demanding objectives of community policing.^{Footnote 6}

[37] Moreover, the paragraph that follows is included in a CAPRA course for RCMP members. It states, under the heading "Primary police responsibility":

Invariably, your response will, if it is to address all client needs and interests, include elements of several of the response strategies: service, protection, prevention and enforcement. You will need to assess what your primary responsibility is in terms of how public interest is best served in a particular situation. You will need to recognize how this can change over the course of an investigation or incident. . . . [Y]ou may build a strategy that gives first focus to protection, shifts to service and then turns to prevention, and if appropriate enforcement. . . . In a given situation, you must continuously ask: "What is my primary responsibility? What course of action would be in the public's best interest? Which client(s) should get priority at various stages of an incident?"

[38] In the Commission's view, the CAPRA model ought to have prompted Constable Abboub and Constable Fortin to adopt a problem-solving approach to the situation that limited the risk of violence. One reasonable solution could have been for the RCMP to have secured the ballot box temporarily as a courtesy to prevent violence.

RCMP Commissioner's Response

[39] The Commissioner agreed with the finding and directed that the Commission's recommendation be implemented.

Arrests

[40] The Commission's second concern relates to the inability of the police officers to articulate their reasons for arresting Mr. and Ms. Lee, and for not having a safe strategy to escort Mr. and Ms. Lee from the hotel once they were arrested.

[41] As part of its investigation, the Commission sent an Interview Advisory Form to Constables Abboub, Fortin and Gibson, offering them the opportunity to respond to specific questions regarding the legal authority and factual basis upon which Mr. and Ms. Lee were arrested. They each declined to provide any further information, as was their right.

[42] To determine if the officers' conduct complied with the law and policy, it is necessary to determine what legal authorities permitted them to take action after their arrival at the meeting. If they had no legal authority to arrest Mr. and Ms. Lee, then any force used to arrest them would be unreasonable. If the arrests were based on lawful authority, then the amount of force used had to be reasonably necessary for the conduct to be justified.

[43] The legislative basis for establishing the duties of RCMP members is found in section 18 of the RCMP Act, which states:

It is the duty of members who are peace officers, subject to the orders of the Commissioner,

(a) to perform all duties that are assigned to peace officers in relation to the preservation of the peace, the prevention of crime and of offences against the laws of Canada and the laws in force in any province in which they may be employed, and the apprehension of criminals and offenders and others who may be lawfully taken into custody;

(b) to execute all warrants, and perform all duties and services in relation thereto, that may, under this Act or the laws of Canada or the laws in force in any province, be lawfully executed and performed by peace officers.

[44] One of the "laws of Canada" is the Criminal Code, which provides in section 25(1)(b):

Every one who is required or authorized by law to do anything in the administration or enforcement of the law

. . .

(b) as a peace officer or public officer,

. . .

is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.

[45] This authorization is limited by section 26 of the Criminal Code, which states:

Every one who is authorized by law to use force is criminally responsible for any excess thereof according to the nature and quality of the act that constitutes the excess.

[46] The Supreme Court of Canada in R v Storrey^{Footnote 7} stated that, for an arrest to be valid, it is not sufficient for the police officer to subjectively believe that he or she has reasonable grounds to make the arrest. It must also be shown that a reasonable person, standing in the shoes of the officer, would have believed reasonable grounds existed to make the arrest. Therefore, the grounds for the arrest must be satisfied in both a subjective and objective manner to be lawful.

[47] The criminal offence of causing a disturbance is found in section 175(1) of the Criminal Code and the relevant portions are as follows:

Every one who

(a) . . . causes a disturbance in or near a public place,

• (i) by fighting, screaming, shouting, swearing . . . or
• . . .
• (iii) by impeding or molesting other persons,
• . . .

is guilty of an offence punishable on summary conviction.

[48] The leading Supreme Court of Canada case concerning this offence is R v Lohnes,^{Footnote 8} in which the Court stated:

. . . The "disturbance" contemplated by s. 175(1)(a) is something more than mere emotional upset or annoyance. Before an offence can arise under that section, the enumerated conduct must cause an externally manifested disturbance of the public peace, in the sense of interference with the ordinary and customary use by the public of the place in question. The interference may be minor but it must be present. It may be proven by direct evidence or be inferred from the evidence of a police officer as to the conduct of a person or persons under s. 175(2). The disturbance may consist of the impugned act itself or it may flow as a consequence of the impugned act. Finally, in accordance with the principle of legality, the disturbance must be one which may reasonably have been foreseen in the particular circumstances of the time and place.

[49] In her statement, Constable Abboub said that officers told the group of people to leave the hotel immediately or they would be arrested for causing a disturbance, and noted the following in her report:

. . . [Constable Abboub] felt like they had to take the two parties into custody as soon as possible to control the situation. At this time, Constable Abboub advised Ms. Lee that she was under arrest for Obstructing a Police Officer because Ms. Lee was not cooperating.

[50] Constable Abboub gave four different reasons for the arrest at various points, including obstruction (for refusing to cooperate), resisting arrest, causing a disturbance, and assaulting a police officer.

[51] Constable Fortin's police report states:

Cst Fortin placed his left hand in LEE's back and gently try to move him forward. LEE slowed down more and was making comments not understood by police, Cst Fortin told him to stop resisting and that he was now causing a disturbance that he was under arrest [sic throughout].

[52] It is arguable whether Mr. and Ms. Lee's actions constituted causing a disturbance. Ms. Lee certainly attempted to impede the hotel security guard from leaving the room; however, that was done for the purpose of signing her name on the ballot box seal, and not to produce a scuffle or otherwise interfere with the public's use of the building. Mr. Lee's shouting and arguing was also directed at the vote and not an externally manifested disturbance of the public peace.

[53] The following extract from Constable Abboub's statement to the NWPD provides an indication that the attending RCMP members did not have full control of the situation and were not able to clearly articulate their reasons for the arrest of Mr. and Ms. Lee:

. . . Constable Gibson came and I just told him pretty much like, uh, she's, she uh, arrested for obstructing. So this is where he took control of her but he didn't know why; he just, he was there to help me. So, he, we handcuff her . . . Constable Gibson controlled her . . . and now Ms. Lee] was trying to get through you and kind of to her husband. My thought process was uh, she will umm, first of all, she, she obstruct us 'cause she didn't want to let, she was (indiscernible) she was pushing me. So, she was no cooperative at this point . . . I didn't know what she was going to do [sic throughout].

[54] To add to the confusion, Constable Gibson wrote that he informed Ms. Lee that she was under arrest for assaulting a police officer. When he was asked about the details of the assault, Constable Porter replied that he was told:

. . . Some sort of glass was thrown . . . at Constable Fortin I believe . . . that they had assaulted him and they were just trying to get it, they said there was a lot of people still on the landing on the upstairs; and they were trying to guh (phonetic) get everyone out. And, it just became a situation where, umm, something got thrown (indiscernible) someone got spilt on the ground and . . . he had kicked I believe . . . I know that the, the child bit Constable Gibson. . .   He showed me a, a bite mark of where she bit him [sic throughout].

[55] Constable Lee's police report states:

Constable Abboub advised Constable LEE that PARK was arrested for assaulting a police officer. At 2326 hours, Constable LEE arrested, chartered and warned PARK in Korean . . . . Constable LEE was also advised to arrest, charter and warn LEE. At 2331 hours, Constable LEE arrested, chartered and warned LEE in Korean.

[56] There is no mention of causing a disturbance in the arrest made by Constable Lee, but Mr. Lee was told that in addition to being placed under arrest for assaulting a police officer he was being arrested for obstruction.

[57] The Commission is unable to determine that there were sufficient grounds to establish that either Mr. or Ms. Lee had committed an assault against the RCMP members. The reports of the members simply state that Mr. and Ms. Lee did not listen when told to not interfere with the security guard and that they were arrested because they resisted. Any physical contact by Mr. and Ms. Lee with the members that could have constituted an assault, including the interaction on the stairway, occurred after the arrests and therefore is not a relevant consideration in this analysis.

[58] The actions of Mr. and Ms. Lee were more in the nature of resisting the efforts of the members to control them rather that an assault on the members. The elements that would constitute resisting arrest would be operative if there were grounds to effect an arrest initially.

[59] The offence of obstruction is found in section 129(a) of the Criminal Code. The three elements that must be proven by the Crown are: that there was an obstruction, that the RCMP member was a peace officer who was in the execution of his or her duty, and that the person obstructing did so willfully.^{Footnote 9} These elements were summarized by Judge Dunnigan in R v Lohidici,^{Footnote 10} who indicated that the question of whether the conduct constitutes "obstruction" is one of fact, to be determined having regard to all the circumstances of the specific case.

[60] Furthermore, as indicated in R v Whalen, although it is not necessary that the police be completely thwarted in the execution of their duty, "[t]rifling, momentary or transitory actions on the part of the accused, which do not cause problems of consequence or which require only an insignificant amount of additional effort on the part of the peace officer, may not be sufficient to constitute 'obstruction.'"^{Footnote 11}

[61] The Commission's review of the case law at the appellate level reveals that the threshold for the actus reus^{Footnote 12} of obstruction requires more than mere inconvenience to a peace officer in the performance of their duties. For example, in R v Hargrove,^{Footnote 13} the New Brunswick Court of Queen's Bench, acting in its role as the summary conviction appeals court, found that while there may have been an inconvenience to the peace officer, this did not amount to obstruction. This viewpoint is also supported by commentary in secondary sources. In Mack's Criminal Law Bulletin of September 2017, the author conducted a thorough review of contemporary jurisprudence concerning the offence of obstruction and concluded that "it has been held that [obstruction] requires more than something which merely makes the officer's job more difficult . . . ."

[62] Applying this analysis to the facts, it is critical to determine whether the actions of Mr. and Ms. Lee impacted the efforts of the police officers in more than a trivial way. Ms. Lee was trying to sign a ballot box to ensure that it was not tampered with. Although this was an emotional situation, there was no underlying criminal activity occurring. Mr. Lee attempted to assist his wife when she was directed to sit down by Constable Fortin. The law enforcement purpose of the officers was to ensure that the ballot box was removed from the room. Mr. Lee was shouting and yelling at this time but according to the security guard, who was the person trying to get out of the room with the ballot box, neither Mr. Lee nor anybody else was impeding his progress.

[63] The yelling and shouting by Mr. Lee viewed in this context might inconvenience the officers in their duties but it does not rise to the threshold of constituting the actus reus for the offence of obstruction. The Commission would adopt the observation of Judge Fradsham in his decision in Whalen, where he stated:

. . . I do not condone such mischievous behavio[u]r but it must be considered in perspective. Such momentary lapses are ill advised, immature, irresponsible and a host of other unflattering adjectives but they are not criminal . . . . One cannot criminalize any and all activity that cause some small, transitory extra effort on the part of a peace officer.^{Footnote 14}

[64] Similarly, although the Commission does not condone the actions of Mr. and Ms. Lee, it finds that the RCMP members did not articulate lawful grounds for their arrest. In the absence of articulated grounds for arrest, any use of force was necessarily unreasonable.

[65] The Commission notes that section 31 of the Criminal Code provides police officers with the power to arrest for a breach of the peace. This section does not create an offence but is a specific preventative arrest power for situations such as a public function. Even if a police officer has not witnessed the initial breach of the peace, an arrest is lawful if the initial breach was reported to the officer. The information provided to RCMP members indicating that Mr. Lee was aggressive towards one of the opposing voters, as well as the actions of Mr. and Ms. Lee towards the security guard, could have been addressed in a more effective manner through an arrest for an apprehended breach of the peace. This would have allowed Mr. and Ms. Lee to be detained until the ballot box had been removed and then released by the members without any legal consequences.

Escorting Prisoners in the Stairwell

[66] Once Mr. and Ms. Lee had been arrested, the officers decided to escort them out of the building by way of the stairwell rather than the elevator. It is unclear from the officers' statements and reports why Mr. and Ms. Lee were not escorted outside using the elevator rather than the stairs. It is more likely than not that the officers were aware of a nearby elevator, as the conference room's main entrance was located at the top of the staircase near the elevator that goes to the first floor.

[67] Many of the witnesses mentioned in their statements that they took this same elevator when leaving the hotel due to the number of people gathered around the stairway. This would have not only allowed the police to exercise more effective control in handcuffing Mr. and Ms. Lee, but would have also avoided the inherent dangers of taking resistant individuals down a staircase surrounded by people supportive of Mr. and Ms. Lee. The police knew of this inherent danger of transporting arrested and resistant persons down stairways, as revealed in Constable Gibson's statement to the NWPD wherein he acknowledged that he learned from his police training that stairs are an inherently dangerous place.

[68] As part of its investigation, the Commission requested that the RCMP provide national and "E" Division policy/training concerning the removal of an arrested person down a stairway. The RCMP responded that no policy exists that governs police procedure for the removing of an arrested person down a stairway and that police tactical considerations are largely explained through its Incident Management/Intervention Model (IM/IM).^{Footnote 15} Subsequent correspondence from the RCMP indicated the following:

• There does not appear to be a specific lesson plan associated to prisoner escort on stairs. Both are covered separately. Stairs are covered during IARD and PPSIC, with the same lesson plan, being how to clear them. It is also covered at Depot during low and medium risk building approaches. Prisoner escort is covered during hour block 6-7 at Depot, and speaks mostly to having control. CEW speaks to issues around CEW usage in the environment as a whole (ledges, water, etc.), though does not speak specifically to stairs.
• Stairs are also considered as part of a general risk assessment, as they are both a tactical consideration, and a situational factor that may elevate a member's risk assessment, depending on how they contribute to the totality of the situation.

[69] In the Commission's view, the choice to escort Mr. and Ms. Lee via the stairway in the circumstances caused an increased risk of violence or injury. Nonetheless, the Commission recognizes that it enjoys the benefit of hindsight and is not necessarily fully aware of the individual perceptions of the involved RCMP members. For these reasons, the Commission recommends that Constable Abboub and Constable Fortin discuss the situation with an RCMP use of force expert to better understand tactical options and safety risks with a view to reducing the risk in future interventions.

RCMP Commissioner's Response

[70] The RCMP Commissioner disagreed with the Commission's finding that "Constable Abboub and Constable Fortin did not properly articulate a statutory authority for the arrests, thereby rendering the arrests unreasonable."

[71] The RCMP Commissioner wrote:

Constable Abboub had grounds to arrest Ms. Lee for a number of offences, including assaulting a peace officer, assault, and obstruction of a peace officer. Constable Abboub articulated the grounds for arresting Ms. Lee in his statement to the New Westminster Police Department. Constable Abboub recalled seeing Ms. Lee follow Constable Fortin, who was escorting her spouse, Mr. Lee, out of the meeting room. Constable Abboub saw Ms. Lee holding a glass of water raised above her head. Constable Abboub feared this would be thrown at Constable Fortin and told Ms. Lee to drop the glass twice, before removing it from her hand. After the glass dropped to the ground, Ms. Lee tried to push past Constable Abboub to get to Constable Fortin. At this point, Constable Abboub arrested Ms. Lee for obstructing a peace officer to prevent her from assaulting Constable Fortin or obstructing Constable Fortin's arrest of Mr. Lee.

The Commission concluded that Ms. Lee's actions amounted to an inconvenience to the members and that there was no underlying criminal activity. This interpretation is limited and does not consider all of the facts, including Constable Abboub's perception. When applying the elements of obstruction to this event, it was evident both Constable Abboub and Constable Fortin were in the lawful execution of their duties. In the midst of a dynamic and volatile situation, Constable Abboub believed that Ms. Lee was going to willfully throw a glass at Constable Fortin and interfere with the arrest of Mr. Lee. Constable Fortin, who was unaware of this threat, could have been seriously injured by a thrown glass object. Ms. Lee's actions were not a mere inconvenience; they were, in fact, a criminal act. To prevent Ms. Lee from committing an assault with the glass and obstructing the arrest of Mr. Lee, significant intervention was required from Constable Abboub. Based on the circumstances, her arrest was reasonable.

[72] The RCMP Commissioner also disagreed with the finding that the arrest of Mr. Lee by Constable Fortin was unreasonable. She stated:

Constable Fortin . . . described how, with the concurrence of the organizers, the meeting was adjourned and those in attendance were told to leave. A decision was made to have the disputed ballot box secured by hotel staff. According to Constable Fortin, this decision caused commotion and led to Ms. Lee approaching the security guard to initial the ballot box. Mr. Lee also attempted to approach the ballot box, despite already being told by police to leave the premises. Constable Fortin wrote that he placed his hand on Mr. Lee's back and gently tried to move him forward. Mr. Lee then slowed down and uttered comments that Constable Fortin did not understand, but given that it was clear Mr. Lee was non compliant and given the situation with the crowd, Constable Fortin arrested Mr. Lee for cause a disturbance. Constable Fortin's actions are in line with the results of New Westminster Police Department's investigation.

[73] The RCMP Commissioner gave details of witnesses interviewed by the NWPD as to Mr. Lee's actions and concluded by stating:

The information in the supporting materials points to behaviour by Mr. Lee, such as continuing to shout and attempt to impede the security guard, which led to Mr. Lee's lawful arrest. Even though the members may not have articulated their grounds for the arrest, that does not negate that they had reasonable and probable grounds to arrest Mr. and Ms. Lee . . . . There were other people present, besides the police officers, to be disturbed by the behaviours of impeding and shouting. As a result, I disagree with the finding that given that the arrests were unreasonable, the amount of force used to perform these arrests was necessarily unreasonable.

[74] The Commissioner referenced the NWPD's use of force expert, who concluded that "Constable Fortin and Constable Abboub appropriately applied the Incident Management Intervention Model to arrest and control Mr. Lee and Ms. Lee."

[75] Although she disagreed with the finding, the RCMP Commissioner did "generally support" the recommendation that Constable Abboub and Constable Fortin be reminded of the importance of clearly articulating grounds of arrest, and directed that it be done.

[76] The RCMP Commissioner did not agree with the finding that escorting Mr. and Ms. Lee via the stairway instead of the elevator was unreasonable in the circumstances.

[77] The RCMP Commissioner stated that Constable Fortin and Constable Abboub may or may not have been aware of the nearby elevator. The Commissioner said that the evidence revealed that the RCMP members did not take the elevator to the conference room but went up the stairs. The elevator may not have been an option, because of the number of people using it. Furthermore:

If the members were aware of the elevator, it would not have been tactically sound to bring the arrested person back towards a crowd of people because of how the event itself unfolded . . . . In the circumstances, it was reasonable to gain control of Mr. Lee and escort him down the remaining stairs to the lobby. It would have been unreasonable to take Mr. Lee back upstairs, only to bring him back down in the elevator.

[78] The RCMP Commissioner did not support the recommendation that Constable Abboub and Constable Fortin receive operational guidance by a use of force expert. She wrote, "As noted earlier, an independent Use of Force expert found that Constable Fortin and Constable Abboub appropriately applied the Incident Management Intervention Model, and commended them for using restraint in a volatile situation."

Commission's Reply

[79] The RCMP Commissioner's response to the Commission's finding that the arrests were unreasonable proposes a different interpretation and assessment of the evidence without pointing to new facts or new evidence. As the Commission has stated in previous cases, the RCMP's own views about the appropriateness of its members' actions should not be allowed to govern in a case where its independent oversight body, having examined all the evidence, has reached a different conclusion, and no new factual or evidential information is being offered by the RCMP.

[80] The RCMP Act sets out the RCMP Commissioner's duties following receipt of the Commission's interim report. These duties include that the Commissioner will:

. . . provide the Chairperson and the Minister with a written response indicating any further action that has been or will be taken with respect to the complaint. If the Commissioner decides not to act on any findings or recommendations set out in the report, the Commissioner shall include in the response the reasons for not so acting.^{Footnote 16}

[81] In the Commission's view, the RCMP Act provides the RCMP Commissioner with the authority to decide whether to take action based on the Commission's findings and recommendations. It does not provide her with a mandate to rebut the Commission's findings of fact and law.

[82] Having reviewed the evidence discussed in the RCMP Commissioner's response, the Commission reiterates its original assessment of the matter. There are no new facts or evidence to cause the Commission to alter its original findings.

[83] However, the RCMP Commissioner did concede that the members did not articulate their reasons for arrest. This point alone was sufficient to support the Commission's conclusions. It is not the task of the Commission—or the RCMP Commissioner—to articulate a police officer's grounds for arrest after the fact. Police officers must possess subjective reasonable grounds to make an arrest at the time the arrest is made. These grounds cannot later be inferred by others. The failure to document grounds for arrest or to provide such grounds during a later investigation makes the arrest unreasonable.

[84] Given that the Commission stands by its finding that the arrests were unreasonable, it also reiterates its finding that the use of force was unreasonable. The NWPD's use of force expert based his opinion on a reasonable arrest. Since this assumption is not met, the opinion is not relevant to the Commission's analysis. Furthermore, the Commission is not bound by the findings of an external police agency. The NWPD was a separate police service conducting a criminal investigation. The Commission's mandate is not to assess whether a criminal offence was committed. Rather, it is to assess whether the RCMP member's conduct was reasonable. Force that is lawful can still be unreasonable.

[85] With respect to the stairway, the Commission agrees with the RCMP Commissioner that since security escorted the RCMP members via the staircase, it is not a certainty that the members were aware of the nearby elevator. However, given its close proximity, it is more likely than not that they were so aware. The Commission's final report has been adjusted accordingly to reflect that the RCMP members did not take the elevator when they arrived. This does not, however, change the Commission's finding that the use of the stairway posed a greater potential risk than the elevator.

[86] The Commission found that the use of the stairway in the circumstances caused an increased risk of violence or injury. Although the RCMP Commissioner speculated on reasons why the elevator may not have been tactically feasible, these factors were not in evidence before the Commission. Since the involved RCMP members chose not to provide statements during the Commission's investigation, their subjective perceptions on this point were not available. The Commission was left to examine the available evidence to arrive at its conclusions. The RCMP Commissioner's speculation does not alter this analysis.

[87] Finally, in its review, the Commission already considered the fact that the use of force expert from the NWPD commended the members' restraint. For these reasons, the Commission reiterates its recommendation that Constable Abboub and Constable Fortin discuss the situation with an RCMP use of force expert to better understand tactical options and safety risks with a view to reducing the risk in future interventions.

[88] The Commission also highlights that the public complaint process is remedial in nature and not punitive. Even where the RCMP may disagree with the Commission's analysis, it is encouraged to accept recommendations that are intended to improve the skills and abilities of RCMP members. In this case, mentoring from an RCMP use of force expert could only improve the tactical abilities of Constables Abboub and Fortin. It is disappointing that the RCMP has chosen not to implement this recommendation.

Issues Involving the Granddaughter

[89] One of the most captivating and disturbing images contained on the cell phone videos is that of Mr. and Ms. Lee's granddaughter, who can be seen coming to the aid of her grandparents as they are being taken away by the police. The granddaughter found herself in a frightening and uncomfortable situation and reacted to this situation by hitting and kicking the police, and in one instance biting the hand of Constable Gibson.

[90] Mr. and Ms. Lee were heard expressing continual concern for the welfare of their granddaughter throughout the incident, as were several other persons who were present at the time of the arrests. Ms. Lee stated the following in her handwritten letter, "Police are here to protect people's property and people and not beat up the elderly and her 5 year old grand-daughter." Although this intimated that her granddaughter was assaulted by one of the RCMP members during the arrest, the Commission's review of the cell phone video and the statements of both police and other witnesses does not support Ms. Lee's allegation. In fact, the Commission finds that the members acted with patience and professionalism in dealing with the granddaughter's attempts to stop the police from taking her grandmother away.

[91] Ms. Lee stated in her summary written statement that she later learned that her granddaughter was placed outside the front doors of the hotel and left there alone and was found by a resident, who protected her.

[92] Although the Commission has found no improper conduct on the part of the members in dealing with the granddaughter's interference with the arrests, the Commission is concerned that there was no effective strategy in place to ensure that the granddaughter was properly cared for once Mr. and Ms. Lee had been taken to the hospital by ambulance.

[93] As part of its investigation, the Commission requested that the RCMP provide all national and "E" Division policy concerning police obligations towards the safety and well-being of young children when the custodial parents or guardians are arrested. The RCMP responded that no policy exists that governs police procedure regarding child safety and well-being during the arrest of a parent or guardian, but that a child's safety and well-being are always paramount in any investigation.

[94] The Commission's investigation has determined that the RCMP members did ask for assistance in having the granddaughter stop impeding the arrest, and Constable Fortin was seen with the granddaughter outside the hotel; however, once Mr. and Ms. Lee were taken away by ambulance they did not have any contact with the granddaughter. With the exception of a brief note by Constable Fortin, there is no information on the police operational reports of any of the members indicating what actions were taken to ensure that the granddaughter was taken home safely.

[95] Constable Abboub's statement to the NWPD investigator reveals that there was concern about the granddaughter during the arrest, with Constable Abboub stating, "[W]e asked them, anybody can take care of her? Where's her parents? Nobody answered; they were just keep filming us." [sic throughout] Constable Fortin's police report simply states that "Constable Fortin then went back inside and assist Constable Gibson who was dealing with Kapsu LEE and her granddaughter who was screaming. Constable Fortin picked up the little girl and carried her outside so we could have people leave the premise as requested initially." [sic throughout]

[96] This does not provide sufficient detail to satisfy the Commission that all necessary steps were taken to address the welfare of the granddaughter. There is no information before the Commission as to why or how K. S. came into custody of the young girl or whether any attempts were made by the RCMP to contact the young girl's parents.

[97] The British Columbia Child, Family and Community Service Act (CFCSA) is the governing provincial legislation for the well-being of children. Section 13 is titled "When protection is needed" and provides at section (1)(k) that "[a] child needs protection in the following circumstances: if the child has been abandoned and adequate provision has not been made for the child's care."

[98] Although the provincial legislation does not define the word "abandoned," the definition of abandon provided by the Dictionary of Canadian Law (Dukelow, Daphne 3rd edition) includes "dealing with a child in a manner that is likely to leave that child exposed to risk without protection." This definition is also contained within section 214 of the Criminal Code. The granddaughter of Mr. and Ms. Lee had been "abandoned," in that her two primary caregivers at the time had both been arrested and were in police custody and therefore she was in the position of being exposed to risk without protection. There was no indication in the materials before the Commission that adequate provision had been made for the child.

[99] Section 25(1) of the CFCSA further provides under the heading "Unattended child" that "[i]f a child is found without adequate supervision . . . a director may do any of the following: (a) take the child to a safe place and arrange for someone to look after the child for up to 72 hours; (b) remain on the premises."

[100] The relevant information reveals that no documented steps were taken to either identify adequate supervision or contact the director designated in the legislation or the appropriate child protection services office. The relevant materials do reveal that individuals, including the RCMP members themselves, were concerned about the young girl; however, the Commission is unable to determine based on the materials before it that her well-being was addressed in a reasonable manner.

[101] This issue is particularly concerning in the present case given the emotional circumstances experienced by the young granddaughter in seeing her grandparents arrested in a loud and confrontational setting, without the assistance or guidance of her parents or other identifiable family members. The Commission requested that the RCMP provide its policy that would speak to these types of situations. The policies respecting children are for the most part contained in the family violence protocols and are not applicable to the present circumstances. The Commission has determined that it is insufficient to prevent future occurrences of this nature. The Commission recommends that the RCMP review its policy concerning incidents where children are left in a potentially unattended state and the family violence policy is inapplicable.

RCMP Commissioner's Response

The RCMP Commissioner agreed with the Commission's findings and directed that the recommendations be implemented.

Cell Phone

[103] The Commission's investigation has determined through a review of Constable Fortin's operational report, several witness statements, and portions of cell phone video that Constable Fortin took H. Y.'s cell phone during her attempt to capture images with the device. H. Y. stated that, while in the lobby, she was trying to take a photograph of Constable Fortin taking Mr. Lee outside the hotel. H. Y. was beside Constable Fortin when the latter told her not to take a picture unless she wanted to be arrested.

[104] H. Y. stated that she was very close to Constable Fortin; he grabbed the phone out of her hands and threw it across the room. When the phone hit the ground, it broke into several pieces. The phone failed to work properly afterward.

[105] The details provided in Constable Fortin's report reveal that he seized the cell phone because H. Y. would not get out of his way when he was trying to escort Mr. Lee from the hotel. Constable Fortin wrote:

A group of people who were filming the scene were standing in police way out of the hotel, they were instructed to move out of the way. . . . On their way out one of the person who was filming got very close to police with her cell phone to film things, police had to drop LEE then grabbed the female cell phone and shoved it away so she would move out of police way [sic throughout].

[106] Constable Fortin's report does not specify any legal authority under which he was acting when he grabbed the cell phone and threw it to the ground. The Commission provided Constable Fortin the opportunity to present information concerning the legal authority and factual basis upon which H. Y.'s cell phone was seized. Constable Fortin declined to provide a written interview response.

[107] The Commission is unable to determine why Constable Fortin took H. Y.'s cell phone and threw it on the ground, thus causing it to be damaged. There does not seem to be any rational connection with the removal of the cell phone and H.Y blocking the way.

[108] Although some police officers might find it frustrating to be videotaped when executing their duties in stressful or difficult situations, their training and experience demand that all duties be performed at a professional standard consistent with the Canadian Charter of Rights and Freedoms and the established legal authorities.

[109] Of note, Constable Fortin's actions cannot be justified on the basis that H. Y. was obstructing the police. In R v McFadden,^{Footnote 17} a case that also involved an individual attempting to take photographs of police while the police were in the execution of their duties, the Court determined the following:

If a peace officer is in the execution of his duty, it is clear that an act by the accused which prevents the peace officer from executing his duty is obstruction. At the other end of the spectrum, there are acts which have little effect on the peace officer's job except to momentarily cause the officer to pause. Surely, these do not meet the threshold. . . . At what point on this spectrum do an accused's actions amount to obstruction? [Emphasis in original]

[110] The Court then discussed the mens rea, or intent, element of the offence and noted:

The Criminal Code does not criminalize innocent acts regardless of their consequences. A person who takes a photograph of a police officer in the execution of that officer's duty with no intent but to capture the moment electronically is not culpable. This is true even if the taking of the photograph in some way makes it more difficult for the officer to carry out his or her duties.

[111] In R v Yussuf,^{Footnote 18} the Court observed that the plain reading of the juxtaposition of the word "wilfully" beside the word "obstruct" is instructive. The wilful obstruction of a police officer requires that the accused intended to make it more difficult for the officer to execute his or her duty. This would include the accused recklessly acting with the knowledge that his action would likely result in obstruction.

[112] There is no indication that H. Y. intended to make Constable Fortin's job more difficult. She explained that her intention was to take a photograph. H. Y. was entitled to use her cell phone to record as she saw fit. The Commission has found no legal basis for the removal and throwing away of H. Y.'s cell phone by Constable Fortin. It is also significant that the force used in throwing the cell phone caused it to be damaged.

RCMP Commissioner's Response

[113] The RCMP Commissioner agreed with the Commission's finding and directed that the RCMP apologize to H. Y. for Constable Fortin throwing her cell phone on the ground. She also directed that the RCMP offer to reimburse H. Y. for the damage to the cell phone, and directed that Constable Fortin receive operational guidance concerning his actions with respect to H. Y.'s cell phone.

Conclusion

[114] The Commission has finished investigating and reviewing this complaint. Having considered the RCMP Commissioner's response, the Commission reiterates its findings and recommendations, and its involvement in this matter is now complete.

Michelaine Lahaie
Chairperson