Final Report Following a Public Interest Investigation into the Arrest of A. B.

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

Complainant: A. B.^{Footnote 1}

Overview

This public interest investigation concerned the conduct of Constable Josh Grafton, an RCMP police service dog handler, who was the subject of a complaint concerning his use of force during an arrest. In 2015, RCMP members participated in the surveillance and pursuit of a stolen pickup truck. A. B. was the driver of the truck. When the truck was boxed in by police vehicles, A. B. attempted to flee on foot. Constable Grafton pursued A. B. with a police service dog. During his arrest, A. B. suffered skull fractures, a broken jaw, puncture wounds, and other injuries.

This matter is of significant public interest for several reasons.

Following its investigation, the Commission found that the force used by Constable Grafton was unreasonable and significant, causing serious injuries to A. B. The Commission also found that Constable Grafton unreasonably failed to provide medical assistance to A. B.

As noted in the Commission's interim report, the Commission recently found in a separate matter that Constable Grafton used unreasonable force when he struck a suspect repeatedly with significant force, similar to what was found in this present matter. The Commission additionally found that Constable Grafton demonstrated an improper attitude when he repeatedly swore at and threatened the suspect, who was handcuffed and bleeding at the time.^{Footnote 2}

Moreover, Constable Grafton is the subject of another Commission public interest investigation that is currently suspended, pending the outcome of criminal proceedings against him as investigated by the Independent Investigations Office of British Columbia. This matter involves similar allegations as the present case.^{Footnote 3}

In its interim report, the Commission recommended that Constable Grafton not perform duties as a police service dog handler until he could demonstrate a full understanding of policy and training applicable to deploying a police dog to apprehend a suspect. The RCMP Commissioner accepted this recommendation.

This matter also involved an examination of many aspects of the RCMP's police dog training program and the associated policies concerning police service dogs. The series of files involving Constable Grafton have permitted the Commission to examine RCMP policies, practices, and training in a comprehensive manner.

The outcome of this process has led to significant changes in RCMP policies, practices, and training, intended to reduce the risk of injuries when deploying a police service dog.

Procedural History and Complaint

Following his arrest in September 2015, A. B.'s legal counsel filed a complaint with the Independent Investigations Office (IIO) of British Columbia, alleging that Constable Grafton used improper force when he repeatedly struck A. B. on the head, breaking A. B.'s jaw. The IIO commenced an investigation into A. B.'s arrest.

On August 19, 2016, the Civilian Review and Complaints Commission for the Royal Canadian Mounted Police ("the Commission") received a public complaint that mirrored A. B.'s complaint to the IIO. In the complaint, A. B. alleged that Constable Grafton used improper force when he repeatedly struck A. B. on the head, breaking A. B.'s jaw.

Public Interest Investigation

On September 21, 2016, the Commission notified the Commissioner of the RCMP that the Commission would be conducting a public interest investigation (PII) into A. B.'s public complaint pursuant to section 45.66(1) of the RCMP Act.^{Footnote 4} The investigation was initiated to examine:

• Whether Constable Grafton complied with all appropriate training, policies, procedures, guidelines and statutory requirements when he applied force to arrest A. B.;^{Footnote 5} and
• Whether the RCMP's national policies, procedures, training and guidelines relating to such incidents are adequate.

The Chief Civilian Director of the IIO concluded that one or more members of the RCMP might have committed an offence during the relevant incident.^{Footnote 6} The IIO submitted a Report to Crown Counsel, which required the British Columbia Prosecution Service to consider whether to pursue criminal charges against the subject member(s).

On June 5, 2018, the Commission suspended its investigation of the public complaint to ensure that the criminal investigation against Constable Grafton was not compromised or seriously hindered.^{Footnote 7} On May 2, 2019, the British Columbia Prosecution Service announced that no charges would be approved against Constable Grafton. This allowed the Commission to resume its public interest investigation.

Process

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.

Constable Grafton declined to provide a statement in this matter. In addition, A. B.'s legal counsel did not respond to requests to arrange a further interview with his client. Nonetheless, statements were obtained from all parties during the course of the IIO investigation, which have been provided to the Commission.

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

• The police file into the original incident
• The IIO's investigation into the incident
• The public complaint
• Relevant law and policies
• Relevant academic publications
• The RCMP's Dog Handler Training Course manual^{Footnote 8}

Facts

In September 2015, a Ford F-250 pickup truck was stolen in British Columbia. The next day, Constable Phil Charron located the stolen truck and began surveillance in an unmarked police Chevrolet pickup. The stolen truck was stationary for several hours. Just before 5 p.m., the stolen truck became mobile and Constable Charron called for backup. Five RCMP members responded to the call. Constable Grafton, a member of the Police Dog Services unit, joined the surveillance in an unmarked Chevrolet Suburban with his police service dog (PSD).

Constable Charron followed the stolen pickup truck for about 20 minutes. He identified the driver as A. B. The truck had a passenger whose identity was unclear at that time. According to Constable Charron and Constable Grafton, unmarked RCMP vehicles were well known to local criminals. Since the surveillance was occurring in a remote location with few other vehicles on the road, Constable Charron assumed that A. B. would easily identify him. A. B. was known to local RCMP members for property theft, flight from police, and resisting arrest.

The stolen truck backed up into a private driveway. Constable Charron stopped his Chevrolet pickup immediately in front of the stolen truck and activated his emergency lights. A. B. reversed the truck through a metal gate and onto a private property with a house. At that time, Constable Grafton rammed the stolen truck with his SUV. According to Constable Charron, this ensured that A. B. would not crash his truck into the house. Constable Charron believed that A. B. was ready to surrender. As Constable Charron exited his vehicle, A. B. suddenly reversed his truck into a tree.

Still perceiving the stolen truck as a threat, Constable Charron returned to his vehicle and rammed the truck from the front. The impact caused a bandana to fall from the face of the passenger in the truck. Constable Charron identified him as C. D., a person known to possess handguns and to commit violent crimes. C. D. and A. B. exited the stolen truck and fled in different directions. Constable Grafton and his PSD pursued A. B. through an area with trees and bushes.

Constable Grafton followed A. B. through the bush for about a kilometre. Constable Grafton deployed the PSD to apprehend A. B. just as A. B. was crawling under a fence near a highway. A. B. offered resistance as he was bitten by the PSD. Constable Grafton approached and struck A. B. several times on the head.

Constable Elizabeth Karl transported A. B. to Prince George Detachment cells. Later that day, an Emergency Health Services team transported A. B. to a hospital.

Commission's Interim Report

Upon completion of its investigation, the Commission issued a 25-page interim PII report and made six findings and nine recommendations.

Notably, the Commission concluded that Constable Grafton used unreasonable force when he struck A. B.'s head repeatedly with significant force.

The Commission's analysis discussed how it was undisputed that A. B. offered resistance as he was being bitten by Constable Grafton's PSD. Constable Grafton recalled being "shocked" by this level of resistance, and stated that he became concerned that A. B. was "high on drugs." However, what happened next was in dispute.

Constable Grafton explained that he applied a "stun strike" to the side of A. B.'s head. This had no effect. Constable Grafton did not want to injure his dominant hand, which had recently undergone surgery. Therefore, he struck A. B.'s face with his elbow twice. A. B. became disoriented, released the PSD, and stopped resisting.

Constable Grafton informed him that he was under arrest and instructed him to roll onto his stomach with his hands visible. A. B. surrendered by saying, "Ok man ok, I'm done, get the dog off me." Constable Grafton saw backup coming down the highway and instructed his PSD to release its grip, which it did immediately.

A. B., on the other hand, recalled that after he resisted the PSD, Constable Grafton kicked him in the face and questioned him about stolen property. Each time A. B. denied stealing anything, he was booted in the face. He recalled at least four to six kicks to his face, but did not recall seeing the boot coming towards him. He recalled being bitten by the PSD for about five minutes. During his interview with the IIO investigator, A. B. had trouble remembering the events that followed his arrest by Constable Grafton. A. B. could not recall whether he was arrested, whether he was handcuffed, or how he walked to the police car. A. B. believed that he lost consciousness when Constable Grafton kicked him in the face.

A. B. was subsequently treated by an emergency physician and by a maxillofacial surgeon. They concluded that A. B.'s facial injuries were caused by blunt force trauma. However, A. B.'s treating physicians could not determine whether the injuries were caused by boots, fists or elbows, because the nature of the injuries did not reveal the shape of the object that made the impact.

It was noteworthy that A. B. did not recall actually seeing a boot coming towards him. It appears that he concluded that he was being kicked based on the force of each impact. The Commission concluded on a balance of probabilities that Constable Grafton did not kick A. B. (as A. B. believed), but that Constable Grafton punched A. B. with his fist and subsequently delivered two strikes with his elbow.

Medical records revealed the full extent of the injuries that A. B. sustained during his arrest. Surgery was required due to fractures to the right orbit and zygomatic arch, a Le Fort I fracture and hard palate fractures, and a right mandibular fracture, which was displaced and required plate and screw fixation. A. B.'s jaw was wired shut; thus, he required an open tracheostomy (a surgical opening that is made through the neck and into the windpipe so that a person can breathe through a tube that is inserted). The Commission found these significant injuries to be inconsistent with Constable Grafton's description of using "stun strikes," which allegedly only resulted in disorienting A. B.

A. B. provided active resistance to the PSD bite. As noted above, Constable Grafton explained that he was "shocked" by this level of resistance and became concerned that A. B. was "high on drugs." However, in the Commission's view, A. B.'s behaviour was not surprising, as he was being bitten by a large police canine.

After examining recent jurisprudence, the Commission found that the fact that A. B. was providing resistance to the PSD could not be sufficient in and of itself to justify an additional application of force in the form of hard physical control. Any other conclusion would suggest that it is always acceptable for a police officer to strike a person while a PSD is already biting them, since most reasonable people would offer at least some degree of resistance in such a situation.

Constable Grafton claimed that he used a "stun strike" and two elbow strikes to disorient A. B. The medical evidence indicates that A. B. was struck with significant force, which was sufficient to cause multiple skull fractures and to break A. B.'s jaw. Constable Grafton did not attempt to restrain A. B. prior to striking him in the face.

Constable Grafton explained that he used his elbow because he was concerned about injuring his dominant hand. This was not a reasonable justification for using excessive force. If Constable Grafton felt that he was not physically fit to apply force within the RCMP's Incident Management/Intervention Model (IM/IM)^{Footnote 9} framework, he should not have participated in A. B.'s pursuit and apprehension.

The Commission was nevertheless cautious in analyzing Constable Grafton's actions in exacting detail. It would have been reasonable for Constable Grafton to apply soft physical control, or to utilize stun strikes to respond to A. B.'s resistance to the PSD. However, the Commission found that the magnitude and the nature of injuries A. B. sustained indicate that the force applied in his arrest exceeded the reasonable range. The medical evidence did not elucidate whether the injuries were primarily caused by a punch or an elbow strike. Nevertheless, it is clear that Constable Grafton struck A. B. repeatedly and with significant force.

The Commission also concluded that Constable Grafton failed to provide A. B. with medical assistance pursuant to applicable policy. The Commission further concluded that Constable Grafton demonstrated a significant lapse in his understanding of policy applicable to PSD handlers.

The Commission also made findings about RCMP policy and training with respect to the use of PSDs. The Commission concluded that the RCMP's national policy did not adequately address the standards applicable to the use of a PSD to apprehend a suspect. The Commission also found that the RCMP's Dog Handler Training Course did not adequately address the standards applicable to the use of a PSD to apprehend a suspect. Finally, the Commission concluded that it was reasonable that the training and exercises provided to RCMP PSD teams focused exclusively on the "Bite and Hold" technique (as opposed to the more moderate "Circle and Bark" technique, which studies have suggested is less effective and can actually result in more dog bites).

The Commission recommended that Constable Grafton receive training about the deployment of a PSD to apprehend a suspect, with particular focus on the use of additional force by the handler. The Commission also recommended that Constable Grafton receive training on the importance of providing first aid and transport to a medical professional. Significantly, the Commission recommended that Constable Grafton not perform operational duties as a PSD handler until he can demonstrate a full understanding of policy and training applicable to deploying a PSD to apprehend a suspect.

The Commission also recommended amendments to the RCMP's national Operational Manual concerning the deployment of PSDs, and the Commission recommended changes to the RCMP's Dog Handler Training Course.

A complete list of the findings and recommendations is included at the end of this report.

RCMP Commissioner's Response

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.

On October 26, 2021, the Commission received the RCMP Commissioner's response, dated October 12, 2021. RCMP Commissioner Brenda Lucki agreed with all of the Commission's findings, and all but one of the Commission's recommendations (the exception is discussed below).

In her response, the RCMP Commissioner stated that she had also concluded that Constable Karl (who transported A. B. to the detachment cells) had failed to follow the RCMP's Operational Manual by neglecting to transport A. B. to the hospital when it should have been apparent to her that he had suffered a head injury and was complaining of chest pain. The RCMP Commissioner stated that, in addition to carrying out the Commission's other recommendations (the eight that she supported), she would direct that Constable Karl receive training on the importance of providing transport to a medical professional, as required by the RCMP's Operational Manual.

The RCMP Commissioner also stated that, as of the date of her response, Constable Grafton was not performing operational duties as a PSD handler. The RCMP Commissioner stated that a training plan is in place to ensure compliance with policies related to handling a PSD should Constable Grafton wish to return to operational duties.

As set out above, there was one recommendation the RCMP Commissioner did not support. The Commission had recommended that the RCMP's Operational Manual be amended to require that PSD handlers apply the RCMP's IM/IM before considering the use of force through a PSD bite. The policy would require RCMP members to consider that it is reasonable for any person to struggle from pain or fear in response to the bite of a large dog. The RCMP Commissioner explained that, after consulting internally, she had reached the conclusion that this recommendation should be addressed as a training issue rather than as a policy amendment. The RCMP Commissioner believed that the existing national policy on the use of force was sufficient because it required all RCMP members, not just PSD handlers, to continually update their risk assessment prior to using force.

The RCMP Commissioner also explained that most PSD handlers will appreciate that a suspect might resist the bite of a large German shepherd for a variety of reasons, including from fear and the desire to prevent injury, or in an attempt to defeat the animal with the aim of escaping arrest. She agreed that additional training about how the IM/IM can assist dog handlers in assessing tactical considerations would be appropriate. As such, while the RCMP Commissioner did not support the Commission's recommendation in terms of amending RCMP policy, she supported its inclusion into RCMP dog handler training (which the Commission also recommended). The RCMP Commissioner stated that she would direct the RCMP's National Police Dog Service Policy Committee to create a subject behaviour/officer response lecture specific to PSD requirements. This lecture would emphasize the understanding that it is reasonable for an individual to struggle from pain or fear in response to being bitten.

The Commission considers the RCMP Commissioner's position a reasonable implementation of the intent of the original recommendation.

The Commission's Complete Findings and Recommendations

In light of the above, the Commission reiterates its findings and recommendations, with the exception of the one policy recommendation discussed above, which the Commission has removed given the RCMP Commissioner's explanation and actions.

Conclusion

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