Final Report Following a Chairperson-Initiated Complaint and Public Interest Investigation into the Conduct of a Public Complaint Investigation

(under sections 45.66(1) and 45.76(3) of the Royal Canadian Mounted Police Act)

Complainant: Chairperson of the Civilian Review and Complaints Commission for the RCMP

Overview

[1] This Chairperson-initiated complaint and public interest investigation provided the Commission with the opportunity to examine the RCMP's public complaint system in detail following significant concerns it identified during the review of a specific public complaint.

[2] The Commission's investigation uncovered extremely concerning conduct on the part of several parties involved in the public complaint investigation. This included a public complaint investigator who refused to obey directions from a superior, a disregard and ignorance of available evidence, mistranslations of crucial statements, and hostility toward a lawyer representing the complainant. The Commission also found that the complainant in this case experienced the appearance of inequitable treatment on the basis of her race.

[3] The RCMP adopted many of the Commission's recommendations, including barring a public complaint investigator from investigating public complaints in any capacity until such time as they receive additional education or training to give them a solid grasp of the skills and knowledge required to successfully investigate a public complaint.

[4] While the Commission made many other meaningful findings and recommendations to address individual misconduct, the larger public interest in this matter is linked to recommendations aimed at the public complaint process itself.

[5] The RCMP has taken several steps in response to this report to address the Commission's concerns. These steps include updating practices and policies related to conflict of interest and bias, revisions of the RCMP's National Public Complaints Guidebook, and the creation of a training course for RCMP public complaint investigators.

[6] The RCMP also supported the Commission's recommendation to take proactive steps forthwith to address the appearance and existence of racism in the public complaint process.

[7] Although the RCMP Commissioner outlined several initiatives that the RCMP has taken in this regard, the Commission continues to harbour concerns that these initiatives are general in nature and do not address the more specific concerns that the Commission had raised with respect to the public complaint process.

[8] The Commission notes that the RCMP Commissioner has recognized that the conduct in this case was problematic, and has made commitments to address many of the systemic issues identified by the Commission. The Commission hopes that the RCMP's more general strategic initiatives will lead to improvements in the public complaint process, and that the issues identified in this report will not reoccur.

Procedural History and Complaint

[9] During the course of a review of a separate public complaint, the Commission identified several areas of concern with respect to the public complaint investigation that had been conducted by the RCMP. The Commission's concerns were sufficiently grave to warrant a separate Chairperson-initiated complaint to more thoroughly investigate the public complaint process in this incident. This new complaint was issued on July 31, 2017. The Commission undertook its own investigation into this new complaint.

Public Interest Investigation

[10] The Chairperson-initiated complaint and public interest investigation included the following issues:

• 1) Whether Corporal Shane Ryan, Sergeant Raimo Loo, Staff Sergeant Brad Freer, or any other RCMP member identified in the course of the investigation conducted a reasonable and unbiased investigation into A. B.'s^{Footnote *} complaint;
• 2) Whether Sergeant Loo and Staff Sergeant Freer reasonably assessed potential conflicts of interest in this matter;
• 3) Whether Sergeant Loo acted reasonably in his conduct towards A. B.'s legal counsel;
• 4) Whether Chief Superintendent Tony Hamori exercised his role as the RCMP's decision maker in this matter reasonably;
• 5) Whether the policies and practices of the RCMP in relation to public complaint investigations and conflicts of interest are reasonable; and
• 6) Whether the conduct of the aforementioned RCMP members in relation to this matter caused, or caused the appearance of, inequitable treatment of A. B. due to her "race."

Process

[11] The Commission is an independent agency that impartially investigates complaints made by the public about RCMP conduct. It is not a part of the RCMP.

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

• The original public complaint and review that led to this complaint
• Voluntary witness statements from subject RCMP members
• Email correspondence and other records provided by the RCMP
• Relevant law and policies

[13] Upon completion of its investigation, the Commission issued a 36-page Interim PII Report and made 15 findings and 13 recommendations.

[14] Pursuant to section 45.76(2) of the RCMP Act, the RCMP Commissioner is required to provide a written response indicating any further action that has been or will be taken in light of the findings and recommendations contained in the Commission's Interim Report.

[15] The Commission received the RCMP Commissioner's Response, dated November 18, 2021. RCMP Commissioner Brenda Lucki agreed with most of the Commission's findings and recommendations.

[16] The analysis below, in support of the Commission's findings and recommendations, is extracted from the Commission's interim report. It is based on the state of the law and policies when the interim report was issued, as this is when the Commission made its findings and recommendations.^{Footnote 1} The Commission discusses the RCMP's response to its findings and recommendations at the end of each section.

Facts

[17] On October 8, 2015, Constable Loder initiated a traffic stop in downtown Brooks, Alberta.

[18] The vehicle stopped by Constable Loder contained two occupants—a male driver and a female passenger, who was later identified as A. B. As racism is an issue addressed later in this report, it is important to note that A. B. is Black, while the driver of the car and the police officers involved in the incident are all White.

[19] Following a brief roadside investigation, Constable Loder arrested the driver for impaired driving. During the arrest process, the driver suggested that Constable Loder should be investigating A. B., as he had purchased sexual services from her earlier in the evening.

[20] Constable Loder followed his arrestee's advice and began a municipal by-law investigation into A. B., culminating in her arrest for obstruction when she declined to identify herself. A. B. was subsequently detained overnight in cells and charged with obstruction of a peace officer.

[21] Within a few days, A. B. filed a public complaint directly with the RCMP at the Brooks Detachment. She spoke with Sergeant Loo and outlined her concerns about what had transpired.

[22] Sergeant Loo was the indirect supervisor of the involved members. That is to say, he supervised a Corporal who in turn supervised the involved members, although as the Operations NCO, he regularly monitored and reviewed the work of the Constables.

[23] Sergeant Loo was ultimately tasked by the District Operations Support NCO, Staff Sergeant Freer, to conduct the investigation of A. B.'s public complaint. The conduct of this investigation is detailed in depth in the analysis portion of this report.

[24] Two months later, following complaints from A. B.'s legal counsel and the involvement of the RCMP's National Public Complaints Directorate (NPCD), Sergeant Loo was removed as the public complaint investigator.

[25] Although another investigator was assigned and completed the investigation, the bulk of the public complaint investigation was conducted by Sergeant Loo.

[26] The report dismissing A. B.'s allegations was drafted by Staff Sergeant Freer and signed by Chief Superintendent Hamori.

[27] A. B. requested a review of the RCMP's report by the Commission. Following a review, the Commission made eighteen findings and twenty recommendations in its Interim Report, including that Constable Loder lacked the legal authority to arrest A. B., that his municipal by-law investigation was unreasonable and a pretext to investigate A. B. for prostitution, that the force used against A. B. was unreasonable, that A. B. was unreasonably detained, and that A. B. was a victim of racism.

Analysis

Preliminary issue – credibility of Sergeant Loo

[28] Before embarking on a full analysis of the Commission's investigation, a preliminary assessment of Sergeant Loo's credibility is warranted due to several concerns raised throughout the investigation.

[29] The Commission has had the benefit of reviewing the RCMP's public complaint investigation file in which Sergeant Loo was a prominent player. Between October 15, 2015, and December 22, 2015, Sergeant Loo was the lead investigator and produced several police reports, emails, interviews, and notes related to his investigative efforts. During the Commission's investigation, Sergeant Loo also provided written responses to several questions put to him by the Commission.

[30] Overall, the Commission finds that Sergeant Loo's conduct in both the original public complaint investigation and this current investigation has been evasive at times. Several examples are included below to highlight the basis on which this conclusion is drawn.

The investigation of the vehicle driver

[31] As was noted in the Commission's interim report into A. B.'s public complaint, one area of concern was the fact that Constable Loder embarked on an investigation of A. B. following an allegation that she was a prostitute, made by the alleged impaired driver that Constable Loder had just arrested. The Commission highlighted the fact that the sale of sexual services is not a crime in Canada; however, the purchase of sexual services is a crime,^{Footnote 2} and the Commission noted that Constable Loder did not investigate the driver, who was ostensibly the only offender in the facts available to him.

[32] During this investigation, the Commission asked Sergeant Loo whether he had "any concerns about Constable Loder's failure to investigate the driver of the vehicle for the purchase of sexual services?"

[33] In his response to the Commission, Sergeant Loo indicated:

There was no evidence that I saw (a statement, a report, etc.) to indicate such an event took place. The Corporal for Cst. Loder is responsible for the day to day review and direction of the members assigned to them. It would be the Corporal's responsibility to ensure if evidence existed from the reviewed file to be followed up with properly.

[34] This response cannot be reconciled with the record. The core of Sergeant Loo's public complaint investigation was reviewing whether the arrest of A. B. was reasonable. This arrest was the result of Constable Loder acting on the information provided by the driver he had arrested.

[35] As part of the public complaint investigation, Sergeant Loo documented that, on October 16, 2015, he reviewed the operational file pertaining to the incident. In this file, Constable Loder documented as follows:

Cst. LODER asked [the driver] about the passenger in the vehicle and [the driver] admitted she was a prostitute. [The driver] also admitted he paid $300.00 to [A. B.].
. . .
Cst. LODER went and questioned [A. B.] about being a prostitute . . . .

[36] Moreover, during the public complaint investigation led by Sergeant Loo, a statement was obtained from the driver in question. This statement was taken on November 22, 2015, and included in the public complaint investigation file as both a video-recorded interview and a transcribed statement. In this interview, the driver states:

Interviewer: Well you described her you'd said she was an escort?
Driver: Ah yeah yes she did have a fee for her escort services yes yeah and uh you wanna know how much suppose
Interviewer: Yeah
Driver: It was three hundred dollars

[sic throughout]

[37] On December 7, 2015, Sergeant Loo documented in a report on the public complaint investigation file that he read this transcribed statement of the driver.

[38] Finally, in an email dated October 20, 2015, Sergeant Loo provided a summary of the incident to another member involved in the investigation. Sergeant Loo wrote:

. . . [The driver] claims he paid $300 for the services of a prostitute, the black female passenger in his car.

[39] Based on all these facts, the Commission cannot accept the response of Sergeant Loo as being an accurate representation of the information he had before him at the time. He had reviewed ample information to suggest that Constable Loder was aware that the driver had admitted purchasing sexual services from A. B.

The interview plan

[40] As A. B. did not reside in the local Detachment area, Sergeant Loo made arrangements with an investigator in A. B.'s local area, Sergeant Chris Van Imschoot, to obtain a statement from her. In contemplation of this interview, Sergeant Loo prepared a summary of the incident and an interview plan to assist Sergeant Van Imschoot. Sergeant Loo documented his plan to send such a document in his police report and subsequently sent this information via email to Sergeant Van Imschoot on October 20, 2015.

[41] Although the entire interview plan will be examined in more detail later in the report, one particular question Sergeant Loo suggested be asked of A. B. was:

How long has she been a call girl for? (She has a web page posted announcing arrival in Brooks).

[42] The Commission struggled to find the relevance of this question as it pertained to the public complaint investigation into A. B.'s allegations. The Commission put this issue to Sergeant Loo in its written questions, and in his response Sergeant Loo indicated:

I do not have any notes for this 'interview plan', what evidence do you have to link me to having conducted research to find a webpage advertising – I did not conduct any such search, I do recall hearing of a member working who did confirm a webpage but that makes no impact to the treatment of a person in custody or of a Canadian Citizen to lodge a complaint with it being investigated without bias or prejudice.

[43] While Sergeant Loo's email does not specifically state whether he himself reviewed a webpage advertising A. B.'s services, the fact that he included this information as one of only seven questions in his interview plan for her refutes his suggestion that it had no impact on the investigation of her allegations.

Conclusions as to Sergeant Loo's credibility

[44] While the above examples do not reach the threshold to draw a negative inference towards Sergeant Loo's credibility, they do cause the Commission to regard Sergeant Loo's evidence with some degree of caution and skepticism, as his responses appear somewhat evasive and overly defensive at times.

First Issue: Whether Corporal Ryan, Sergeant Loo, Staff Sergeant Freer, or any other RCMP member identified in the course of the investigation conducted a reasonable and unbiased investigation into A. B.'s complaint

Second Issue: Whether Sergeant Loo and Staff Sergeant Freer reasonably assessed potential conflicts of interest in this matter

[45] The first two issues relate to conflict of interest and bias. These concepts are closely related, involve many of the same facts, and flow together. Accordingly, they will be reviewed under the same heading with several subheadings to address the various aspects of these issues.

Decision of Staff Sergeant Freer to assign Sergeant Loo as public complaint investigator

[46] The very first question to examine is whether it was reasonable for Staff Sergeant Freer to have assigned Sergeant Loo as the public complaint investigator in this matter. Staff Sergeant Freer made this assignment on October 27, 2015, following a series of emails with Sergeant Loo throughout the day.

[47] The only relevant factors in assessing Staff Sergeant Freer's action are the facts that were before him when he made his decision. As the decision was made in writing based on information provided in a series of emails, it is a straightforward process to identify the relevant information.

[48] In one of his initial emails, Sergeant Loo identified the incident in question and noted that A. B. had been charged. He also briefly outlined the nature of the public complaint as follows:

. . . she made the public complaint (unlawful arrest, assault, unlawful detention) to myself over the phone on the 15th . . . .

[49] In a later email to Staff Sergeant Freer, Sergeant Loo included RCMP form 6402, "Conflict of Interest Disclosure." The purpose of this form is to assist decision makers in determining whether a conflict of interest exists before assigning an investigator.

[50] On this form, Sergeant Loo identifies two potential conflicts of interest, as follows:

Operations NCO for the detachment and those investigated report to me via the chain of command

Currently posted to the Brooks Detachment where the allegation of incident has occurred

[51] In an associated email to Staff Sergeant Freer, Sergeant Loo also notes:

Hi,
I have completed the 6402 (attached below). I feel that there would be no conflict as all evidence gathered is transparent thereby showing no favour or bias. I have investigated members in this Detachment before and other posting and feel I can do the investigation impartially.

[sic throughout]

[52] Following this email, Staff Sergeant Freer confirmed Sergeant Loo's appointment as the public complaint investigator in this matter. In his reply, he remarked that he had not yet reviewed the operational file prior to making his decision.

[53] The concept of conflict of interest is closely related to bias. That is to say, the purpose of assessing whether a conflict of interest should preclude a person from undertaking a duty is designed to protect against bias in the underlying assignment. Bias itself has two forms, actual bias and the appearance of bias, with the appearance of bias requiring a significantly lower threshold to establish. An assessment of a potential conflict of interest must be done on a case-by-case basis and examine whether actual bias or an appearance of bias would exist.

[54] Moreover, it is important to note that bias itself can be conscious or unconscious. Unconscious bias can manifest itself innocently in situations where a person is otherwise acting in good faith:

Bias is or may be an unconscious thing and a man may honestly say that he was not actually biased and did not allow his interest to affect his mind, although, nevertheless, he may have allowed it unconsciously to do so. The matter must be determined upon the probabilities to be inferred from the circumstances . . . .^{Footnote 3}

[55] For these reasons, Sergeant Loo's self-assessment with respect to his ability to undertake a bias-free investigation should have carried little weight with Staff Sergeant Freer due to the possibilities of unconscious bias as well as the appearance of bias. It was incumbent on Staff Sergeant Freer to conduct his own assessment of any probable bias on the part of Sergeant Loo and not to rely on Sergeant Loo's assertions.

[56] The legal standard for such an assessment was set out by the Supreme Court as follows:

. . . what would an informed person, viewing the matter realistically and practically—and having thought the matter through—conclude. Would he think that it is more likely than not that [the person in question], whether consciously or unconsciously, would not decide fairly.^{Footnote 4}

[57] In conducting this assessment, Staff Sergeant Freer had a duty to consider the nature of the public complaint along with the potential issues raised by Sergeant Loo against the standard set out above.

[58] In this case, A. B.'s public complaint alleged serious misconduct, including a statutory offence, against an RCMP member. Moreover, Sergeant Loo had identified that the involved RCMP members reported to him via the chain of command, that he worked in the area where the alleged misconduct occurred, and that he had received A. B.'s initial public complaint and discussed the matter with her.

[59] None of these factors considered independently necessarily excluded Sergeant Loo as a public complaint investigator. However, considered together against the court's standard, Staff Sergeant Freer ought to have had trepidation in assigning Sergeant Loo to this duty. At the very least, Staff Sergeant Freer ought to have had sufficient concern to familiarize himself with the matter by reviewing the operational file and informing himself of any past or possible future involvement by Sergeant Loo as Operations NCO in the criminal investigation.

[60] An allegation that a police officer may have committed a crime warrants a high degree of oversight and the quality of the ensuing investigation is a matter of strong public interest. Given all these factors, a reasonable person would likely conclude that it was not appropriate for the subject member's supervisor to be involved in the investigation.

[61] Much later in the public complaint investigation, Inspector Gerald Gervais of the Alberta Professional Responsibilities Unit arrived at a similar conclusion:

As Sgt. Loo identified on the form that those investigated reported to him via the chain of command this close connection to the subject members could lead a reasonable person to perceive a conflict of interest.

[62] For these reasons, the Commission finds that Staff Sergeant Freer's decision to assign Sergeant Loo as the public complaint investigator in this matter was unreasonable.

[63] As Staff Sergeant Freer has since retired from the RCMP, he is not the subject of any remedial recommendations.

Bias in the public complaint investigation

[64] During the ensuing public complaint investigation, several distinct areas of potential bias arose.

[65] The first issue identified by the Commission is Sergeant Loo's conduct with respect to A. B.'s criminal matter shortly after her filing of a public complaint.

[66] The incident that led to A. B.'s arrest began on October 8, 2015, and led to her detention in custody until the following day. On October 15, 2015, A. B. filed her public complaint directly with Sergeant Loo, including detailed allegations against the subject members. By the next day, Sergeant Loo appears to have reviewed the operational file and issued direction to members to address potential issues he noted.

[67] The Commission arrives at this conclusion based on the reports of several of the involved RCMP members, as well as Sergeant Loo's notation in his report on October 16, 2015:

Matter of the PC [public complaint] relates to Brooks file 2015-1309321, Cst. Loder. File reviewed and missing some member supplementary reports . . . .

[68] Constable Paige, a subject member in A. B.'s original public complaint, documented in his report:

2015-10-16
15:17 hrs I spoke with Sgt. LOO and he suggested that I document my involvement in this file as I previously had not.

[69] In addition, three days after A. B. filed her public complaint, Constable Loder drafted a report in the operational file that addressed each aspect of her public complaint allegations and struck a defensive tone. This new report added different justifications for his arrest of A. B. and was the subject of heavy criticism in the Commission's report into A. B.'s public complaint.^{Footnote 5}

[70] Of particular concern is the fact that Sergeant Loo did not document in his report any contact with these members or the issuance of any direction or suggestion with respect to the file.

[71] These actions demonstrate the problems inherent in supervising subject members of a public complaint while simultaneously investigating a related public complaint.

[72] Providing guidance to subordinates on the documentation of a criminal investigation is appropriate conduct for a supervisor. However, directing that subordinates respond to allegations in a public complaint—particularly without clearly documenting such actions in the public complaint investigation file—strongly conveys the appearance of bias to an objective observer.

[73] As previously noted, A. B. did not reside in the Detachment area and Sergeant Loo made arrangements for Sergeant Van Imschoot to conduct her interview. On October 20, 2015, he sent Sergeant Van Imschoot an email in which he provided a summary of the events and his interview plan for A. B.^{Footnote 6}

[74] The following excerpt constitutes the complete interview plan of A. B. proposed by Sergeant Loo:

Questions to be asked after she recounts her version of events that night:

- How much drugs and alcohol did she consume that night?
- Did she considered [sic] herself to be impaired or just feeling good?
- How long has she been a call girl for? (She has a web page posted announcing arrival in Brooks).
- Did she understand that Cst. Loder was a police officer giving a lawful request for identification as per Sec. 166 of the Traffic Safety Act?
- Why did she not exit the vehicle when requested, it was not her vehicle and it was being towed?
- Why did she resist physically so much?
- What result does she hope to accomplish from this Public Complaint? – Lead into informal resolution. The member had lawful authority to arrest and she did resist/obstruct thus the charges.

[75] The core of A. B.'s complaint was that her arrest was unlawful and the subsequent use of force and detention were therefore also unlawful. Thus, the resolution of her complaint rested largely on the question of whether Constable Loder had the lawful authority to demand identification from A. B. and then to subsequently arrest her when she failed to provide it. Sergeant Loo's interview plan suggests that he had arrived at key conclusions to these questions before assessing the evidence and before obtaining A. B.'s version of events.

[76] Specifically, Sergeant Loo's comment that, "Cst. Loder was a police officer giving a lawful request for identification ," addresses the very essence of the legal analysis required to determine the validity of A. B.'s allegations. Police officers do not possess the inherent power to demand identification from a person. There must exist an underlying legal authority for such a demand. Sergeant Loo had evidently predetermined his answer to this question without documenting any such analysis.

[77] Moreover, Sergeant Loo's remark that "[t]he member had lawful authority to arrest and she did resist/obstruct thus the charges" again addresses the essence of the legal analysis required. The fact that a charge had been laid is not evidence to support Sergeant Loo's conclusion (the fact that the charge was later subject to a stay of proceedings at the request of Crown counsel reinforces this point). Again, Sergeant Loo's comments speak to his predetermination of the outcome of the complaint.

[78] In addition, Sergeant Loo's questions concerning A. B.'s occupation and her level of impairment were irrelevant to her public complaint. Intoxication was not documented by Constable Loder as a factor in his arrest of A. B.. Furthermore, working as a "call girl" is not a crime in Canada. Sergeant Loo's perseverance with this aspect of the incident, including his remark that she operates a business web page, was unreasonable.

[79] Finally, Sergeant Loo's question with respect to A. B.'s resistance is irrelevant to her public complaint. It ought to be common knowledge to a police officer that if A. B.'s first allegation were supported—that is, that she was unlawfully arrested–then she would be entitled to resist the unlawful arrest with reasonable force.

[80] Overall, Sergeant Loo's interview plan was unreasonable and was suggestive of bias in his overall public complaint investigation.

[81] During Sergeant Loo's investigation of A. B.'s public complaint, counsel for A. B., C. D., repeatedly raised the issue of bias with Sergeant Loo. The pair engaged in fairly hostile email exchanges over a period of time. These concerns were eventually received by the divisional Professional Responsibility Unit and then reviewed by the RCMP's National Public Complaints Directorate (NPCD).

[82] During this time period, the Officer in Charge of the divisional Professional Responsibility Unit, Inspector Gervais, issued written direction to Sergeant Loo on November 18, 2015, as follows:

The National Public Complaint[s] Directorate is engaged with Legal Services in the review of this matter and seeking to provide our unit and yourself with some meaningful recommendations. In the interim, can I ask you to refrain with engaging with [C. D.] in any form of verbal or written correspondence unless it is reviewed by myself in conjunction with your DANCO etc......please.

[Emphasis added]

[83] The NPCD ultimately recommended that Sergeant Loo be removed as the investigator in this matter for reasons related to the email correspondence that are explored later in this report. The divisional Professional Responsibility Unit concurred with this recommendation and on December 22, 2015, Inspector Gervais directed Sergeant Loo to have no further involvement in the matter.

[84] Shortly after receiving this message, Sergeant Loo followed up with Inspector Gervais, noting that the investigation was nearly complete and that he could finish it within days. Inspector Gervais replied a few moments later:

 . . . For transparency purposes and as per direction received from the NPCD, your role on the public complaint file should cease and the new investigator should then make the necessary arrangements for completing the remaining interviews and report to the decision maker. [Emphasis added]

[85] Sergeant Loo acknowledged his understanding of that direction in his police report:

14:48 hrs Message received from Insp. G. Gervais that the writer is to cease involvement with the investigation as per the direction from the NPCU. . . .

[86] Despite the clear direction from Inspector Gervais, Sergeant Loo continued to have involvement in the matter. On December 22, 2015, and on January 6, 2016, Sergeant Loo corresponded with C. D. in a series of emails pertaining to this matter that continued in the past, hostile tone. The emails do not appear to have been reviewed or approved by Inspector Gervais. Sergeant Loo defended his actions in his written statement to the Commission, indicating that:

On Dec. 22, 2015 I had sent a reply to C. D. at 08:04 hrs…later that day I received direction not to have any further involvement with this investigation. C. D. continued to correspond contacting me on January 06, 2016. As not to appear unprofessional or improper, I replied respectively to his inquiry.

This had nothing to do with the investigation or involvement with that process. The newly assigned investigator was not working at the time and I believed this to be the best course of action by providing a reply in a timely fashion.

[87] It must be emphasized that, for several months, C. D. had been seeking to have Sergeant Loo removed as the public complaint investigator for reasons of bias. Moreover, the purpose of C. D.'s correspondence was directly related to the public complaint investigation.

[88] Sergeant Loo's emails to C. D. did not mention that he had been removed from the investigation. Instead, the pair debated about the proper service of a particular document to A. B.

[89] A professional response to C. D.'s email would have been to inform C. D. of the reassignment of the matter and to provide him with contact details for the new investigator. It was unreasonable for Sergeant Loo to continue to correspond with C. D. about the public complaint after being directed by Inspector Gervais to have no further involvement. Moreover, Sergeant Loo's actions perpetuated the perception put forth by C. D. that he was biased in this matter.

[90] This is not the only involvement that Sergeant Loo maintained in the investigation. Sergeant Loo continued to draft the monthly update letters that are provided to complainants in public complaints. On January 15, 2016, Sergeant Loo signed his name to a letter to A. B. in which he wrote:

The investigation into your complaint is now complete. This will now be reviewed by a Senior member of the RCMP with whom a decision as to the finding of these allegations shall be made. You will be advised of the outcome.

If you have any concerns or questions please do not hesitate to contact me.

Yours truly,
[Signed]
Sgt. Raimo LOO
Brooks Det. Operations NCO

[Emphasis added]

[91] Sergeant Loo was removed from the investigation due to the RCMP's belief that he presented a perception of bias in the investigation. Continuing to author monthly update letters and identifying himself as the appropriate contact person perpetuates that appearance. A reasonable person receiving this letter would conclude that Sergeant Loo was still leading the investigation.

[92] There is also evidence to suggest that Sergeant Loo took active steps in continuing to investigate the incident involving A. B. On December 31, 2015, Sergeant Loo tasked Constable Aziz to translate a French-language statement obtained during the course of the public complaint investigation into English suggesting that he was still actively involved in reviewing and taking actions in the investigation. Later, in the summer of 2016, Sergeant Loo contacted the City of Brooks to enquire as to whether A. B. possessed a business licence and whether the City issues licences for escort services. The City responded in writing with a letter directed to Sergeant Loo and dated July 28, 2016.

[93] In a written response to the Commission, Sergeant Loo acknowledged making this request:

Sometime in late spring/early summer 2016, received a phone request to verify if A. B. ever held a business licence issued from the City of Brooks by the District Advisory NCO. I believe it was S/Sgt. Brunner. I contacted the City of Brooks by phone, business licencing department and they confirmed that no business licence was ever issued to [A. B.] in 2015. It was also conveyed that the City of Brooks does not issue licences for "escort service" either. The message was passed along to S/Sgt. Brunner, unknown if it was by phone message or email. If it was email it may be on the hard copy file but I no longer have such a copy of this.

[94] Given that the criminal charge against A. B. had been stayed at the request of the Crown counsel many months earlier (in January, 2016), this tasking was related only to the investigation of A. B.'s public complaint. Sergeant Loo had a responsibility to remind others that Inspector Gervais had directed him to have no involvement in this matter. He also had a legal duty to take no actions whatsoever with respect to the investigation.^{Footnote 7} It was unreasonable for him to persist in taking investigative steps towards this complaint and again reinforces the appearance of bias in this matter.

[95] Overall, the Commission finds that, despite clear, unambiguous direction from Inspector Gervais, Sergeant Loo continued to have significant involvement in the investigation of A. B.'s public complaint. Moreover, given that his removal from the investigation was for reasons of appearance of bias, it was particularly damaging to the process itself for him to have continued to have any involvement whatsoever.^{Footnote 8} His failure to respect the lawful command of a superior and to recognize bias was unreasonable.

Recommendations with respect to Sergeant Loo

[96] Sergeant Loo's conduct in this matter stood out from that of others involved in this incident and fell well below that expected by the public for a member of his rank.

[97] Sergeant Loo failed to comply with specific and acknowledged direction from Inspector Gervais to cease any involvement in A. B.'s public complaint. In the Commission's view, Code of Conduct measures would be an appropriate response to such a wanton disregard for supervisory direction.

[98] Moreover, the breadth of Sergeant Loo's failures in the public complaint investigation process does not provide the Commission with faith in his abilities to conduct future public complaint investigations in a fair and impartial manner. Consequently, the Commission recommends that the RCMP bar him from involvement in any future public complaints until such time as the Officer in Charge of the NPCD is satisfied that, based on additional education or training, Sergeant Loo has a solid grasp of the skills and knowledge required to successfully investigate a public complaint. To that end, the Commission also recommends that the RCMP provide operational guidance to Sergeant Loo with respect to several issues identified in this report.

Translation of a French-language statement

[99] A final issue arose with respect to the public complaint investigation.

[100] On December 9, 2015, a civilian ride-along that had been in Constable Quimper's police vehicle during A. B.'s arrest was interviewed in relation to the public complaint investigation. This interview of E. F. was conducted in the format of a handwritten statement by E. F. taken in New Brunswick. E. F.'s statement was written in French.

[101] Following receipt of this French statement, on December 31, 2015,^{Footnote 9} Constable Aziz of the Brooks Detachment was directed by Sergeant Loo to translate the statement from French into English.

[102] Constable Aziz completed a translation and signed a "Transcript Certification" form dated December 31, 2015, in which he stated that the transcript was, "an accurate typed reproduction of the recorded interview."

[103] Constable Aziz's training records and statement indicate that he does not have any specific training or experience in the translation of documents from French to English.

[104] Moreover, in his statement to the Commission, Constable Aziz indicated that French is his fifth language, having learned it while taking some French courses in university.

[105] The Commission has reviewed the original French statement from E. F. and the translation provided by Constable Aziz. The Commission finds that the translation is not accurate. Several sentences in E. F.'s statement are not included in the English version while certain descriptions in the English version are not contained in E. F.'s original statement. The discrepancies include the following:

Original Statement: Quand il lon menotter et sorti Mathieu [Constable Quimper] la transporter a son vehicle et elle essayait de se sauver. Au vehicle elle voulait pas entrer. Il a du la diriger et a du la tiendre jusqu'a temp qu'elle soit dans le vehicules.

[sic throughout]

Translation by Constable Aziz: When they took her out and handcuffed her, she attempted to escape when Mathieu was walking her back to his police car. She was all over the place, swinging left and right attempting to escape. At the police car, she did not want to enter. Mathiue [sic] was directing her to enter and held her until she was in the police car.

[106] In this excerpt, the English translation has added the sentence, "She was all over the place, swinging left and right attempting to escape," suggesting that A. B. was more violent than is documented in the original French version. This is no mere mistranslation. An entire sentence that was potentially prejudicial to A. B. was added to the English version that was not contained in the original French statement.

[107] In another instance, the English translation leaves out information contained in the original French statement:

Original Statement: Mathieu etait dehors et elle criait des betise, elle me demandait si j'aivait vue comment il l'avait traiter et je ne repondait pas. Elle ta demander qu'elle voulait sa sacoche. J'y ai dit qu'il l'amenait. Elle a crier jusqu'a temp on a arriver au poste.

[sic throughout]

Translation by Constable Aziz: Mathieu was outside talking to other Members and she was swearing. She asked me if I saw how she was dealt with. I remained silent. She shouted the whole time until we arrived at the Detachment.

[108] In this excerpt, the English translation incorrectly states that Constable Quimper was outside talking to other members. The original French version simply states that he was outside. More importantly, the English translation excludes the portion of the statement where E. F. describes A. B. asking for her belongings—a plausible explanation for her distress, as she did not want them left in a stranger's vehicle that was about to be towed.

[109] Other more minor discrepancies exist between the English and French versions of these statements, including some aspects of E. F.'s observations of the use of force against A. B. by the members.

[110] Based on a full review of the entire English and French versions of this statement, the Commission is satisfied that the English translation of the statement was unreasonably translated in a manner prejudicial to A. B.'s public complaint.

[111] It is noteworthy that some aspects of this mistranslation were cited in the RCMP public complaint investigator's report provided to the RCMP decision maker and therefore may have impacted the decision-making process.

[112] The Commission put these discrepancies to Constable Aziz in the form of written interview questions. In his reply, Constable Aziz provided the following explanations, provided in point form, for the issues noted with the translation:

I used "google translate" however I can not recall for which sentences or words I may have used it.

I am in agreement with both discrepancies noted above. Upon a second review of my translation of the excerpts above; I had attempted to summarize the circumstance of the events by "context of the sentence" and not the exact translation. This is usually the method I employ when reading a French text where I am not fully able to understand the definition of each words so I try to "paint a picture" of the incident to convey a complete understanding of an event or story.

Regarding the omitted portion; upon a second review, I did not include it because I did not understand the sentence.

I do recognize how my normal method of understanding a French text could be viewed as misleading in this particular case however this is the only way I am able to understand a text when no aid is provided to me in terms of a personal French assistant (ie teacher or another French speaking person, etc...).

[sic throughout]

[113] Given Constable Aziz's admission that he did not understand some of the words and even some of the sentences contained in the French statement, it is incomprehensible that he was involved in any manner in its translation, let alone certifying that it was accurate. Based on his own self-assessment of his language skills, Constable Aziz had a duty to inform Sergeant Loo that he was not able to competently complete the requested translation.

[114] Moreover, the use of technology such as "Google Translate" has no legitimate purpose in the official translation of a formal document in a police investigation. The Government of Canada possesses many qualified translators available to all government departments. It was unreasonable for Sergeant Loo to task an unqualified person to conduct the translation and it was unreasonable for Constable Aziz to complete a translation for which he lacked the basic qualifications.

[115] In addition to the translation issues, the Commission has serious concerns with the propriety of an RCMP member belonging to the same detachment as the subject members of a public complaint being tasked to evaluate evidence in the public complaint investigation. Constable Aziz disclosed that he had a working relationship with the members that were the subject of the public complaint investigation. This also ought to have precluded him from completing the translation.

Third Issue: Whether Sergeant Loo acted reasonably in his conduct towards A. B.'s legal counsel

[116] Although the previous findings related to Sergeant Loo speak in some manner to his professionalism, additional concerns are raised by the manner in which Sergeant Loo communicated with C. D.

[117] Sergeant Loo's communications with C. D. involved a series of emails back and forth in which C. D. raised the issue of conflict of interest. On November 10, 2015, C. D. expressed concerns via email that Sergeant Loo was assigned as the public complaint investigator, as he worked at the same Detachment as the subject members. C. D. noted that the Brooks Detachment is a "small detachment."

[118] As per the preceding analysis, the Commission finds that, in the circumstances, it was reasonable to conclude that there was the appearance of a conflict of interest.

[119] On November 11, 2015, Sergeant Loo replied via email to C. D.. He engaged in an argumentative debate with C. D. on the size of the Detachment:

Not sure what your definition of a "small Detachment" is but Brooks Detachment is one of the largest ones in Southern Alberta with a compliment of 40 personnel.

[120] Sergeant Loo also argued with C. D. about the perception of a conflict of interest and his competency to conduct the investigation:

I have completed the necessary documentation as required by the RCMP for Conflict of Interest for this matter and this has been approved by my superiors in Calgary HQ. I am no novice to these types of investigations and have conducted one's within the same unit with unbiasedness and total integrity. My task as the investigator is to gather all the facts including statements and present them in a report. This report is what is reviewed by Senior Officers and a Crown to determine if any offences have occurred. I do not make any judgement or suggest anything to the findings.

[sic throughout]

[121] C. D. replied later the same day with further explanation of his concerns related to a conflict of interest. He also asked questions as to Sergeant Loo's working relationship with the subject members. Again, the Commission finds C. D.'s concerns to be reasonable ones that would be expected of any competent counsel who was aware of the facts of the matter.

[122] Within the hour, Sergeant Loo replied and did not address C. D.'s concerns, stating:

As stated before my superiors have entrusted me to investigate this matter. Will you or will you not provide a statement of facts?

[123] Later that evening, C. D. replied with more direct questions to Sergeant Loo related to conflicts of interest in this investigation. The following morning, Sergeant Loo replied:

. . . Everything is transparent and open for scrutiny but at this time this is the process that is occurring, I am the assigned investigator to gather and present the facts. . . .

[124] Again, Sergeant Loo did not respond to the questions posed by C. D.

[125] Later that morning, C. D. replied and reiterated his concerns that Sergeant Loo was in a conflict of interest. He then provided an overview of A. B.'s allegations against the subject members, including several Charter issues.

Two and a half hours later, Sergeant Loo replied to C. D.'s email. With respect to the issues of conflict of interest, Sergeant Loo stated:

. . . you will be permitted to raise concern once the investigation is complete.
. . .
I have addressed this concern already by the Conflict of Interest documentation that I completed for my superiors to review. They have no concerns thus I was assigned. Once you see the final report, I have no input as to the final decision …. I am just a fact gatherer.

. . . I am professional and ethical, taking my duty very seriously.

[126] Following another series of emails back and forth on the same issue, Sergeant Loo replied:

Good Morning Sir,

Perhaps at trial you can speak to me and explain why this case is an "exception".

Charter issues are most serious of course, and with Remembrance Day most recently those who made the ultimate sacrifice are for those specific rights and freedoms we so cherish. My report does not permit me to make suggestion or opinion of this, it only identifies the facts.

. . .

If there is anything else that I may assist you with in providing service to your client with regards to her Public Complaint please do not hesitate to contact me. I truly believe that the police should Serve and Protect in all aspects of their duties.

[Emphasis in original]

[127] Throughout this series of emails, C. D. has raised his concerns of a conflict of interest several times along with specific reasons why he believed such a conflict existed.

[128] Once these issues were raised, Sergeant Loo had an obligation to advance these concerns to his supervisor for review. Sergeant Loo was not in a position to summarily dismiss C. D.'s concerns.

[129] Moreover, the tone and content of Sergeant Loo's replies are unprofessional and unreasonably argumentative at times.

[130] On December 21, 2015, C. D. again contacted Sergeant Loo by email, concerned that A. B. had been contacted directly to sign a document in relation to the public complaint. A. B. had previously instructed the police, via C. D., to contact her only through her legal counsel.

[131] On December 22, 2015, Sergeant Loo replied to C. D. and informed him that the document in question was RCMP form 4110, which outlines her complaint.

[132] On January 6, 2016, C. D. requested that Sergeant Loo not contact A. B. except through him. He also requested a copy of the form 4110, as A. B. had apparently not been provided a copy of it at the time.

[133] Later that day, despite already having been directed on December 22, 2015, to have no further involvement in this matter, Sergeant Loo replied to C. D. and stated:

You are a Criminal lawyer, this is a public complaint…..she is the complainant so the form goes to her and she may pass it along to you. This is all purely administrative.

[134] It is evident that Sergeant Loo does not appreciate the fundamental right of a party to be represented by her choice of counsel. In an administrative process such as the public complaint process, it was incumbent on him to respect A. B.'s wishes, as expressed by counsel.

[135] It should be noted that the issue of Sergeant Loo's professionalism and conflict of interest was recognized by the RCMP, leading to the direction that Sergeant Loo be removed as public complaint investigator.

[136] The NPCD was informed of the situation by C. D. and subsequently reviewed the correspondence between Sergeant Loo and C. D. On December 22, 2015, the NPCD ultimately informed the Alberta Professional Responsibilities Unit of its recommendation that Sergeant Loo be removed. The details of this recommendation are contained in an email from Inspector Gervais:

It is the recommendation of the National Public Complaint[s] Directorate that a new public complaint investigator be assigned to this matter for the reasons noted below.
. . .
Rationale:

- The depth of email messages back and forth between C. D. and Sgt. Loo

- Sgt. Loo signed and completed a Conflict of Interest Form 6402 on 2015-10-27. As Sgt. Loo identified on the form that those investigated reported to him via the chain of command this close connection to the subject members could lead a reasonable person to perceive a conflict of interest.

. . .
The investigator should not personally engage in debate or argumentation with the representative on the question of whether they are biased or in a conflict of interest. This is for the Detachment/Unit Commander to assess or re-assess. Engaging in a dialogue directly with the representative can sometimes in itself create the perception of a bias.
. . .
The investigator should remain focused on identifying the public complaint allegations to be addressed in the investigation and in fact address those allegations through evidence gathering and interviewing witnesses. The investigator should not be speaking to other proceedings falling outside of the public complaint investigation process.

[Emphasis in original]

[137] The Commission finds that the recommendation and rationale advanced by the NPCD were reasonable and appropriate in the circumstances and reinforce the Commission's prior findings.

Fourth Issue: Whether Chief Superintendent Hamori exercised his role as the RCMP decision maker in this matter reasonably

[138] This aspect of the Commission's investigation is more delicate. The Commission is mindful that the decision of Chief Superintendent Hamori has already been reviewed and is the subject of the Commission's Interim Report concerning A. B.'s public complaint.

[139] Therefore, this present review does not address the propriety of the decisions rendered by Chief Superintendent Hamori, but instead reviews certain aspects of the process undertaken by Chief Superintendent Hamori to arrive at his decisions.

[140] Chief Superintendent Hamori did not draft the RCMP's report that bore his signature. It was instead drafted by Staff Sergeant Freer. This, in and of itself, is not necessarily a concern and is common practice in many administrative law fields. However, in this particular case, the report signed by Chief Superintendent Hamori contained many factual inaccuracies. The Commission's concern rests with the degree of diligence exercised by Chief Superintendent Hamori in verifying the content of the report he signed. Simply put, there were many errors that a diligent review of the evidence ought to have uncovered.

[141] For the reasons that follow, the Commission finds that Chief Superintendent Hamori did not exercise reasonable due diligence in verifying that the content of the RCMP's report was reflective of the available evidence.

The allegation of racially motivated language used by Constable Loder and Constable Quimper

[142] In her public complaint, A. B. alleged that Constable Loder and Constable Quimper called her racist names during her arrest. Chief Superintendent Hamori's report did not support this allegation.

[143] Chief Superintendent Hamori based his finding on a credibility assessment. He noted in his report:

During the course of the investigation there were nine different people interviewed, six police officers and three civilians. These statements have been reviewed and there is no mention of any comments that could be interpreted as racist by the officers.

[144] The major failing of this aspect of the analysis is that A. B. claims that the racist comments were made to her at the roadside. The only persons present at that time were Constable Loder and Constable Quimper. Moreover, A. B. contended that Constable Loder uttered his racial slur before the arrival of Constable Quimper and therefore in the absence of any other witnesses.

[145] Consequently, it is unsurprising that the other members and civilians who were interviewed did not report hearing such racist comments. They were not present at the time of the incident. Consequently, using such statements as a basis to assess credibility was unreasonable.

[146] Furthermore, Chief Superintendent Hamori's report also implicitly questioned A. B.'s credibility by stating, "During your release you did not mention anything about being called a racist name, only that you were mistreated."

[147] This statement is inaccurate. During the public complaint investigation, the RCMP member who had released A. B., Constable Megan MacIsaac, was interviewed by the RCMP. In this interview, Constable MacIssac stated, "Um, the only detail that I remember [emphasis added] is she said ah he called me a Black Mother Fucker."

[148] Additionally, throughout the statements of all the members who interacted with A. B., a consistent theme was that A. B. complained repeatedly about being called a racist name throughout her arrest and detention. For instance:

1. The Qualified Technician, Corporal Walter Goliath: Corporal Goliath witnessed A. B. being escorted into the cell block while he prepared to conduct the breath test of the alleged impaired driver. In his statement to the public complaint investigator, he described A. B. as follows, "I was trying to get any information as to who she was and what was going on and she just kept screaming about being called a 'Black Mother Fucker.'"
2. The civilian jail guard, G.H.: G.H. was the civilian guard on duty at the Brooks Detachment. In his statement to the public complaint investigator, he described A. B.'s conduct as "[j]ust cussing and cursing at the guys ah ah you know making statements that they said bad things about her that ah she ah repeated four or five times." [sic throughout]
3. Constable Searle, an assisting officer at the Detachment: Constable Searle described A. B.'s conduct at the Detachment as follows, "Um she was, she was upset. She was saying that Cst. Loder um pulled her out of the vehicle and ah made a racist comment. That ah essentially, 'Get out of the vehicle You Black Mother Fucker', 'Black Mother Fuckin Prostitute', that's essentially what she said."
4. Constable Paige, a subject member: In his PROS report completed on October 16, 2015, Constable Paige described A. B.'s conduct following her arrival at the Detachment, "During my dealing with her up to this point the only thing that I remember that she was saying over and over was that Cst. LODER had called her a 'Black Mother Fucker'. She was saying something to the effect of now she knows what it's like and we were being racist etc."

[149] In the Commission's view, a casual glance at the evidence in this matter would have established that the report drafted by Staff Sergeant Freer was not consistent with the evidence.

[150] In his written response to the Commission during this investigation, Chief Superintendent Hamori responded to this matter as follows:

As mentioned above, Staff Sergeant Freer wrote this letter and summarized the findings. As per the statement of Constable MacIsaac this was obviously an incorrect statement and I missed it on my review. However, it does not change the end result. Whether she had initiated a public complaint at the time of her release, or not, does not change the finding. Other than her own assertions, there was no independent evidence that anyone called her an inappropriate racist name.

[151] While the main point here is that Chief Superintendent Hamori missed an obvious aspect of the evidence, the Commission must mention that it cannot agree with Chief Superintendent Hamori's reasoning as expressed in his reply. With such reasoning, a public complaint allegation could never be supported unless independent third party evidence was available. This is simply incorrect.

The medical release form

[152] Chief Superintendent Hamori dismissed an allegation by A. B. of an improper use of force resulting in injuries to her wrist in part because:

You advised you went to a medical clinic in Edmonton and sought treatment for your wrist. You were asked to provide a medical release form so we could follow up with that clinic. To date you have not provided that release form.

[153] C. D. informed the Commission that he provided a signed copy of the medical release to the RCMP. Moreover, Inspector Greg Shields acknowledged receipt of this medical report on July 19, 2016, approximately one month before Chief Superintendent Hamori signed the report with the excerpt cited above.

[154] In his written response to the Commission on this point, Chief Superintendent Hamori wrote that he did not review such a medical release and could not find it on the file. He concluded:

If this was an error on the part of the RCMP, I would have expected A. B., or her lawyer to respond to me directly and provide another copy of the medical release as soon as possible when they received the letter, so we could re-evaluate that aspect of her complaint. I was not contacted by either of them.

[155] The Commission cannot accept this line of reasoning. Chief Superintendent Hamori's report was a part of a statutory regime. As was indicated at the end of his report, the statutory recourse for responding to the report was a request to the Commission for a review. C. D. did request such a review on A. B.'s behalf and did provide the Commission with such information.

[156] Therefore, given that the RCMP, via Inspector Shields, did acknowledge receiving the signed medical release one month before Chief Superintendent Hamori issued his report, the Commission must conclude that the RCMP lost the signed release.

[157] While it is not clear that Chief Superintendent Hamori himself was responsible for the loss of the medical release, given that he relied on its absence as part of his reasoning for dismissing A. B.'s allegation pertaining to the use of force, he ought to have been more diligent in ensuring that the RCMP had actually not received it.

The detention of A. B.

[158] One aspect of A. B.'s public complaint was that she should not have been detained overnight in police custody.

[159] The Commission's Interim Report supported this allegation, noting that, even if A. B.'s initial arrest had been lawful (which the Commission found it had not), the Criminal Code required police to release her as soon as was practicable. The Commission found no legal justification for A. B.'s continued detention after police had established her identity.

[160] In his report, Chief Superintendent Hamori declined to support A. B.'s allegation, noting:

Therefore, based on the evidence, I am not able to support this circumstance as an unlawful/improper arrest or detention. However, I do recognize that once your identity was established by the members, discretion could have been utilized to address this bylaw infraction in a more interest based way.

[161] In his written response to the Commission's investigation, Chief Superintendent Hamori indicated:

As outlined in the letter, Constable Loder obtained her identification from her purse after she was arrested. She should have been released at that time. I have also included a letter from Alberta Crown Prosecutor Ryan Anstey dated January 21, 2016. Crown stayed the charges against A. B. based on, "The potential lack of grounds to detain/continue detention roadside with the accused, based on the evidence of a by-law infraction" and "The lack of a criminal record for the accused."

[Emphasis added]

[162] Chief Superintendent Hamori's stated belief that A. B. should have been released roadside, combined with the opinion of the Crown prosecutor in his possession, cannot be reconciled with the language contained in his signed report. If it was his opinion that A. B. ought to have released, her allegation ought to have been supported.

Fifth Issue: Whether the policies and practices of the RCMP in relation to public complaint investigations and conflicts of interest are reasonable

[163] The fundamental failure in this entire matter that led to the creation of many more issues was the failure to identify a conflict of interest situation at the outset. Had Staff Sergeant Freer properly recognized the conflict of interest situation involving Sergeant Loo and instead assigned a different investigator, the entire sequence of subsequent failures likely could have been avoided.

[164] Therefore, the Commission's focus in this matter is on the RCMP's policies and practices with respect to the identification of conflicts of interest.

[165] The RCMP's practices in identifying conflicts of interest include RCMP policy, the RCMP's National Public Complaints Guidebook, as well as RCMP form 6404.

[166] Form 6404, "Conflict of Interest Disclosure," contains some guidance, as follows:

You have been assigned to conduct an investigation according to Part 54 of the Operational Manual and it is imperative that the investigators be impartial. The purpose of this questionnaire is to ensure that any associations, whether professional or social, are disclosed at the outset of the investigation to the Team Commander.

The mere acknowledgement of a professional or social association would not necessarily preclude a member from participating in the investigative team. If an association exists, it is imperative that the member disclose the nature of the relationship so that an assessment can be made by the Team Commander. If you require clarification in completing this disclosure, please direct your questions to the Investigate Standards and Practices member on scene, or the Team Commander.

[167] The RCMP's National Public Complaints Guidebook also discusses the issue of conflicts of interest. This guidebook is designed to assist members involved in the public complaint process with carrying out their duties. It notes:

There are a variety of situations in which an investigator, commander or a District Officer may not be able to accept or assume responsibility for a complaint or investigation, such as:

• Where there is a clearly demonstrated conflict between the complainant and the entire detachment personnel it may render an investigation by that detachment impracticable and biased.
• Where there is a demonstrated or clearly perceived conflict of interest.
• The complainant is so chronic and persistent that virtually all levels of management in a district have been exhausted and personnel are no longer able to deal with the complainant at the district level.

In these situations the commander/delegate may request the assistance of the divisional PRU to intervene and investigate or resolve a complaint (or series of complaints).

5.3.1 Complaints against Investigators

Members investigating complaints may themselves become the subject of an allegation of neglect of duty for failing to conduct a proper or timely investigation. There are a number of causes for this and they are not always without a legitimate reason on the part of the complainant.

In most cases the investigation is not yet completed. It may be argued that this is an unreasonable allegation for the complainant to make. The normal course of action is for the complainant to wait until the investigation is concluded and the findings are known. A CRCC review may be requested if the complainant is dissatisfied with the manner in which the complaint was handled.

However, circumstances do arise where the complainant has a legitimate concern regarding the conduct of the investigator, during the investigation, prompting them to launch a separate complaint.

Where a complainant is able to provide information to indicate that the conduct of an investigator may be in question, the Commander must assess each situation as it presents itself and take action to ensure that no conflict of interest exists. Proper notifications and reporting procedures should follow.

[Emphasis in original]

[168] RCMP policy offers little guidance in assessing conflicts of interest. Specifically, it instructs:

All investigators undertaking an investigation pursuant to this policy will be screened for any actual or perceived conflict of interest using the criteria set out in App. 54-1-1 [Form 6404].^{Footnote 10}

[169] While decision makers are instructed to assess for any potential conflicts of interest in all of the above-noted sources of guidance, none provide any assistance in how to actually conduct such an assessment, nor is the applicable legal standard referenced. In the absence of guidance or legal training, decision makers may apply different methods to conduct such an analysis and not arrive at consistent or legally defensible decisions.

[170] To remedy this concern, the Commission recommends that the RCMP update form 6404 to include instructions on how such an assessment should be conducted. Reference to the well-established legal standard set out in National Energy Board (cited previously in this report) would be helpful in this regard.

[171] Moreover, the RCMP should improve the National Public Complaints Guidebook to include greater detail and examples on how to conduct such an analysis.

[172] One issue that was raised in this investigation is the practice of assigning as public complaint investigators members who are in the direct line of supervision of the subject member(s). RCMP policy does not prohibit this practice. However, as cited in the body of this report, both Inspector Gervais and the NPCD concluded broadly that such a practice provides the appearance of a conflict of interest.

[173] The Commission recommends that the RCMP provide clear direction in policy as to whether such practices should continue, and if so, under what circumstances.

Sixth Issue: Whether the conduct of the aforementioned RCMP members in relation to this matter caused, or caused the appearance of, inequitable treatment to A. B. due to her "race."

[174] The Commission's Interim Report into A. B.'s public complaint raised concerns with respect to racism. In that report, the Commission found that Constable Loder used racially motivated language towards A. B. and that A. B. was a victim of racism based on the entire situation.

[175] Due to those findings, the Commission continued its examination of the public complaint process through the lens of racism.

[176] The following aspects of this incident give rise to concerns. While each aspect on their own may not be conclusive, it is the constellation of factors that form the basis for the Commission's conclusions.

[177] Several members involved in the initial incident or the public complaint investigation repeatedly make note of A. B.'s "race" throughout their notes or reports despite it not being relevant to the matter at hand. For instance:

• a) In his initial email to Staff Sergeant Freer, Sergeant Loo provides background to the incident and describes A. B. as "the black female passenger in his car," [emphasis added] despite the lack of relevance of "race" to the remainder of the email (allegations of racism were not brought to Staff Sergeant Freer's attention at this time).
• b) In his email requesting an interview of A. B., Sergeant Loo provides a summary of the incident. This summary includes, "[The alleged impaired driver] claims he paid $300 for the services of a prostitute, the black female passenger in his car." [Emphasis added] A. B. was the only passenger in the vehicle. Reference to her "race" was not relevant at this point.
• c) In his summary of Constable Goliath's statement to him, Sergeant Loo writes, "Cst. Quimper had a female black prisoner in car bay screaming." [Emphasis added] Again, the "race" of the prisoner is an irrelevant detail to highlight in a summary of a statement.
  
• d) In his notebook notes, Constable Loder describes his encounter with A. B. as follows:

  Black girl
  Would not give name
  Would not give ID
  Wouldn't exit vehicle
  . . .

[178] In addition, during the string of emails between Sergeant Loo and C. D. previously discussed in this report, C. D. raises the issue of racism as a live issue. Sergeant Loo replies to this aspect of the email in a seemingly dismissive manner as follows:

Was a specific act committed due to the racial heritage of the client or is this because all the officers were Caucasian?

[179] In his report, Chief Superintendent Hamori also notes:

Members working at Brooks detachment deal frequently with individuals of different races because Brooks has a very significant population from Central and East Africa. Constable Loder and Constable Quimper also work with four members who represent visible minorities. Brooks Detachment management have not received any complaint from the public regarding these two officers and racism.

[180] The act of identifying someone by the colour of their skin arguably gives rise to a perception of "racism." Black is not one's ethnicity. Moreover, the individual may not identify as "black." Furthermore, it does not address A. B.'s complaint in any fashion or add value to the analysis. The presence or absence of a significant visible minority community is not a legitimate factor when considering whether RCMP members engaged in specific acts of "racism." Consideration of alternative descriptors, with the assistance of an expert in "race" discrimination, may assist the RCMP in developing a better approach to its reasonable practices of identifying witnesses or others subject to investigation.

[181] In addition, the fact that Constable Loder and Constable Quimper have co‑workers who represent visible minorities is also not a legitimate factor in assessing the validity of A. B.'s allegations.

[182] Furthermore, the statement that management had not received any other complaints about Constable Loder or Constable Quimper is irrelevant to the proper assessment of A. B.'s allegations and is concerning. This logic appears to suggest that the absence of previous complaints reduces the credibility attached to A. B.'s complaint. In essence, the "first" complaint of racism could never be supported.

[183] Again, each of these factors may not be persuasive taken on their own. But taken together from the perspective of A. B., the following scenario emerges:

1. A. B. is Black. All the police officers involved in the original incident and the public complaint investigation were White.
2. During the initial incident, Constable Loder paused a time-sensitive impaired driving investigation to investigate A. B. for prostitution, which is not a crime in Canada, using the pretext of a minor by-law infraction (as per the Commission's findings in its Interim Report into A. B.'s public complaint).
3. Both Constable Loder and Constable Quimper disabled their in-car video cameras before interacting with and arresting A. B. (as per the Commission's findings in its Interim Report into A. B.'s public complaint).
4. Constable Loder used racist terms towards A. B. and arrested her without lawful grounds, using force to effect the arrest (as per the Commission's findings in its Interim Report into A. B.'s public complaint).
5. A. B. was forcibly searched by two male members at the Detachment and held in custody overnight in the absence of lawful grounds for detention (as per the Commission's findings in its Interim Report into A. B.'s public complaint).
6. A. B. filed a public complaint with Sergeant Loo.
7. Gratuitous mention of A. B.'s "race" is included in Sergeant Loo's reports and those of other involved members.
8. Sergeant Loo declined to recuse himself from the public complaint investigation despite a reasonable apprehension of bias advanced by A. B.'s counsel.
9. Sergeant Loo engaged in argumentative and unprofessional communications with A. B.'s counsel and declined to respect A. B.'s wish to be contacted only through legal counsel.
10. The RCMP's report into A. B.'s complaint contained factual and logical errors as well as a questionable approach to dismissing A. B.'s concerns of racism.

[184] These factors provide a basis to conclude that there was at least the appearance of inequitable treatment of A. B. on the basis of her perceived "race."

[185] The Commission supports the Ontario Human Rights Commission's (OHRC) articulation of how discrimination operates.^{Footnote 11} In particular:

In some cases, discrimination is subtle or covert. Intent or motive to discriminate is not a necessary element for a finding of discrimination – it is sufficient if the conduct has a discriminatory effect.

Subtle forms of discrimination can often only be detected after looking at all of the circumstances.

[186] "Looking at all of the circumstances," as the OHRC directs, requires an expert analysis of the service provider's system and its users' practices. In this case, the system is the public complaint process.

[187] For example, the NPCD could obtain expert advice on how to identify "racism" in a system or practice. Additionally, and without limiting the options that a qualified "race discrimination" expert might propose, the RCMP could engage a "race discrimination" expert to review all RCMP public complaint reports to assess the use of language and propose alternatives to avoid the appearance of "racism." Finally, complaints alleging "racism" (such as A. B.'s complaint) could be assigned to members with specific training or experience to provide the complainant a better experience in the process. Expert-designed training programs could be delivered to educate members or investigators.

[188] The Commission is not naming such ideas as a specific recommendation in this matter but only as examples of ideas that could be adopted by the RCMP more generally.

Final Comments

[189] Two smaller issues were noted during the Commission's investigation that warrant minor recommendations.

[190] The first issue involves both Sergeant Loo and Corporal Ryan and their interactions with C. D. and A. B. Both appeared to have difficulties in understanding the role of legal counsel in an administrative process (i.e. the public complaint process) and instead adopted an approach similar to a criminal investigation in generally not permitting the involvement of legal counsel.

[191] Neither RCMP policy nor the National Public Complaints Guidebook addresses this point in a clear fashion. Accordingly, the Commission recommends that the RCMP provide guidance to members on the involvement of legal counsel in the public complaint process.

[192] The final issue is the availability of the RCMP's National Public Complaints Guidebook. None of the members involved in this process possessed or reviewed the latest version of the guidebook while involved in A. B.'s investigation.

[193] As the guidebook appears to be regularly updated and improved, it is important that RCMP members involved in the process receive and review it before carrying out any role in addressing a public complaint. The Commission recommends that the NPCD ensure that each RCMP member involved in the process receive a copy of the guidebook at the outset of a public complaint investigation and be directed to review it before carrying out their role.

Conclusion

[194] In her response, the RCMP Commissioner noted that the time taken by the RCMP to respond to this issue was not ideal.

[195] The Commission finds that the delay of three and a half years was wholly unreasonable and detracts from the effectiveness of the public complaint process.

[196] That said, the Commission recognizes that the RCMP has recently taken several steps to improve its timeliness and has since eliminated the backlog of interim reports awaiting an RCMP Commissioner's response. The RCMP has also committed to responding to reports within six months of their issuance. The RCMP is currently meeting that target for reports issued since April 1, 2021. The Commission trusts that this performance will continue going forward.

[197] Pursuant to section 45.76(3) of the RCMP Act, the Commission respectfully submits its Final Report and, accordingly, the Commission's mandate in this matter is ended.

Michelaine Lahaie
Chairperson