RCMP Commissioner's Notice - Silverfox
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May 11 2011
Mr. Ian McPhail, Q.C
Interim Chair
Commission for Public Complaints
Against the RCMP
P.O. Box 1722, Station "B"
Ottawa, ON
KIP OB3
Dear Mr. McPhail,
I acknowledge receipt of the Commission's Interim Report dated September 8, 2010 on the Public Interest Investigation Respecting the In-Custody Death of Mr. Raymond Silverfox.
I have completed a review of this matter, including the findings and recommendations set out in the Commission's interim report.
I agree with the finding that the warrantless arrest of Mr. Silverfox was reasonable and consistent with the Criminal Code.
I agree with the finding that Constable Van Marck and Constable Bulford failed to obtain documentation from Emergency Medical Services certifying that Mr. Silverfox was fit for incarceration, failed to complete the section of the Prisoner Report dealing with Emergency Medical Services examination, and failed to make detailed notes as required by policy.
As acknowledged in the interim report, following an administrative review in this matter, Inspector Wharton took steps to ensure that members document the date, time and name of the medically trained professional who certified the prisoner fit for incarceration on the Prisoner Report as required by policy.
I support the recommendation that the Detachment Commander conduct regular "spot checks" of Prisoner Reports to ensure that the proper notations are being made as required by RCMP policy. I can inform the Commission that this recommendation is implemented. The Operational Support Non Commissioned Officer and the Detachment Commander of the Whitehorse Detachment now conduct "spot checks" of Prisoner Reports on a weekly basis.
I can also indicate that the RCMP is reviewing national policy and amendments will be made with respect to prisoner logbook documentation and reviews and the clear identification of the roles and responsibilities of supervisors and commanders.
I agree with the finding that Constable Van Marck failed to make any notes regarding his interaction with Mr. Silverfox.
I support the recommendation that a senior officer review with Constable Van Marck the importance of maintaining detailed notes as required by RCMP policy and in fact the RCMP has taken this corrective action.
I can inform the Commission that the RCMP is in the final stage of development of a new notebook policy. As an interim measure pending the publication of this new policy, Senior Deputy Commissioner Knecht issued a force-wide broadcast in March 20th which stressed the importance of members preparing hand-written notes as a fundamental element of a professional police investigation. Supervisors were directed to immediately take steps in an effort to verify and improve the quality of members' note-taking, including inspecting members' notebooks on a monthly basis.
I agree with the finding that Constable Van Marck and Constable Bulford failed to comply with detachment policy requiring that intoxicated prisoners be asked to provide a breath sample prior to incarceration.
As noted in the interim report, as a result of the administrative review conducted in this matter Inspector Wharton reviewed detachment policy and added clauses requiring members to consider all circumstances and indications of impairment and consider medical attention even if a prisoner's blood alcohol content did not exceed 350 mg per 100 ml of blood according to the alcohol screening device.
Although the current policy provisions are prescriptive in that members must ask all prisoners suspected of being under the influence of alcohol to provide a breath sample in the approved screening device, policy review may be necessary to determine whether an amendment may be appropriate to allow for situations where obtaining a breath sample is not possible or practicable.
I support the recommendation that members of the Whitehorse Detachment, as well as all guards and matrons working at the Whitehorse Detachment cells, be given further training regarding signs and symptoms of impairment and medical conditions that may arise therefrom. I would note that significant changes are occurring in Whitehorse with respect to the manner in which the RCMP manages prisoners, namely the current construction of the new Yukon Secure Assessment Centre. Specific training requirements will need to be identified through the consultations with medical professionals in Whitehorse.
This is currently taking place.
I agree with the finding that Constable Bulford adequately assessed Mr. Silverfox's responsiveness at the time of booking and completed the associated section of the Prisoner Report as required.
I agree with the finding that Mr. Craig MacLellan's training was complete and up to date.
I agree with the finding that it was not necessary to place Mr. Silverfox in a recovery position when he first entered Cell 3.
I agree with the finding that Corporal Gale failed to check or assess Mr. Silverfox at the conclusion of his shift.
As mentioned in the interim report, Inspector Wharton took steps to ensure that Watch Commanders understood their responsibilities towards the detachment cell block facilities and prisoners, as well as the need to assess prisoners and record same.
I support the recommendation that the Detachment Commander conduct regular "spot checks" of cell log books to ensure that Watch Commanders are checking and assessing prisoners at the beginning, end and throughout their shifts as required by RCMP policy. As mentioned above, the Operational Support Non Commissioned Officer and the Detachment Commander of the Whitehorse Detachment now conduct "spot checks" of Prisoner Reports on a weekly basis and the RCMP is currently reviewing national policy in order to make amendments with respect to prisoner logbook documentation and reviews and the clear identification of the roles and responsibilities of supervisors and commanders.
I agree with the finding that Corporal MacLeod did not perform a physical check of Mr. Silverfox or assess him at the beginning of her shift as Watch Commander.
I agree with the finding that, although Corporal MacLeod did review Mr. Silverfox's Prisoner Report, she did not question the lack of a blood alcohol content reading.
As indicated in the interim report, Inspector Wharton took steps to ensure that Watch Commanders were better aware of their responsibilities. However, I support the recommendation that Watch Commanders review Prisoner Reports at the beginning and end of their shifts, and that they identify and remedy or direct the remedying of any deficiencies. This measure is in fact in place.
I agree with the finding that information regarding Mr. Silverfox was not comprehensively communicated to Mr. Craig MacLellan by Constable Bulford and Constable Van Marck.
I support the recommendation that the Detachment Commander review with all members and guards the importance of and the need for meaningful, thorough and consistent communication with respect to persons in custody at the Whitehorse Detachment. I can inform the Commission that this corrective action has been taken.
I agree with the finding that the time intervals noted in the cell log book for checks of Mr. Silverfox during Mr. Craig MacLellan's shift were consistent with RCMP policy, as was the irregularity of those intervals.
I agree with the finding that Mr. Craig MacLellan failed to indicate whether Mr. Silverfox was subject to physical checks or checks by way of the video monitor.
I agree with the finding that, as divisional policy specifically required that checks performed be physical checks, there were an insufficient number of checks performed in respect of Mr. Silverfox during Mr. Craig MacLellan's guard shift.
I support the recommendation that the Watch Commanders review cell log books intermittently throughout and at the end of their shifts to ensure compliance with RCMP policy regarding checking and monitoring prisoners, as well as recording same. This recommendation is implemented.
I agree with the finding that the requirement of constant monitoring would have been satisfied through compliance with RCMP policy regarding physical checks of prisoners, supplemented with an enhanced level of awareness given that Mr. Silverfox had been medically examined prior to incarceration.
I agree with the finding that Ms. Balfour's training was complete and up to date.
I agree with the finding that Ms. Balfour properly conducted a physical check of Mr. Silverfox when she began her shift.
I agree with the finding that the time intervals noted in the cell log book for checks of Mr. Silverfox during Ms. Balfour's shift were consistent with RCMP policy, as was the irregularity of those intervals.
I agree with the finding that Ms. Balfour failed to indicate whether Mr. Silverfox was subject to physical checks or checks by way of the video monitor.
I agree with the finding that, as divisional policy specifically required that checks performed be physical checks, there were an insufficient number of checks performed in respect of Mr. Silverfox during Ms. Balfour's guard shift.
I agree with the finding that Ms. Balfour's statement to Mr. Silverfox that he would have to clean up his cell did not comply with RCMP policy.
I would support the recommendation that the Detachment Commander or his delegate review with Ms. Balfour the RCMP policy regarding cell clean-up, however, I am not in a position to act upon this recommendation as Ms. Balfour is no longer working for the RCMP.
I agree with the finding that Mr. Hector MacLellan's training was complete and up to date.
I agree with the finding that Mr. Hector MacLellan properly conducted a physical check of Mr. Silverfox when he began his shift.
I agree with the finding that, although the time intervals of exactly 15 minutes noted in the cell log book for checks of Mr. Silverfox during Mr. Hector MacLellan's shift were consistent with RCMP policy, they were not irregular, which violated RCMP policy in that respect.
I agree with the finding that there were an insufficient number of checks performed in respect of Mr. Silverfox during Mr. Hector MacLellan's guard shift.
I support the recommendation that the RCMP consider further remedial action in regard to Mr. Hector MacLellan 's employment.
I agree with the finding that Mr. Hector MacLellan failed to indicate whether Mr. Silverfox was subject to physical checks or checks by way of the video monitor.
I agree with the finding that Corporal MacLeod failed to periodically check on Mr. Silverfox. As acknowledged in the interim report, Inspector Wharton took steps to ensure that the Watch Commanders understood their responsibilities to the detachment cell block facilities and prisoners.
I agree with the finding that medical assistance was immediately requested once it had been determined that Mr. Silverfox was unresponsive.
I agree with the finding that the members and guards on duty throughout Mr. Silverfox's incarceration failed to seek medical assistance. Several remedial steps have been taken by Inspector Wharton related to this finding. As highlighted in the interim report, he developed and enacted a policy within the Whitehorse Detachment directing members and guards to seek medical attention for intoxicated persons who vomit while in custody in a prone position or vomit excessively considering the possibility of aspiration and the possible development of aspirated pneumonia. In addition to this corrective action, Inspector Wharton took steps to ensure that members seek medical assistance for persons in custody if there is any indication that a person is ill or suspected of having alcohol poisoning, among other conditions.
Finally, I can inform the Commission that Inspector Wharton and/or his delegate reviewed with all members and guards their responsibilities pursuant to policy and such reviews occur regularly.
I support the recommendation that the commanding officer of the Whitehorse Detachment establish a tracking and monitoring system for member and guard responses to incidents involving acutely intoxicated individuals. The Commission may be informed that such a tracking and monitoring system is in place. Member and guard responses to incidents involving acutely intoxicated individuals are now tracked through the prisoner log book, as well as a separate medical/Emergency Medical Services log book.
I support the recommendation that the RCMP work with the Commission to facilitate a yearly review of files concerning incidents of this nature by Commission staff for a period of at least three years following the Commission's interim report.
I agree with the finding that Corporal MacLeod failed to ensure that Mr. Silverfox's cell was safe and habitable.
I agree with the finding that the members present in the cell block and the guards and matrons responsible for Mr. Silverfox 's care throughout his incarceration failed to ensure that his cell was safe and habitable.
As highlighted in the interim report, in response to the administrative review, Inspector Wharton took steps to ensure that members on duty are responsible for making certain that cells are safe and habitable. Additionally, unit supplements were modified to include a clause stating that "habitable" is to be interpreted as being free of vomit, urine or any other bodily substances. I agree that he took adequate steps to achieve a common understanding of what is meant by the threshold of "safe and habitable" with respect to the physical condition of the cell block.
I agree with the finding that the guards and matrons charged with the care and handling of prisoners, including Mr. Silverfox, were provided with adequate direction regarding their responsibilities through the training they were provided. However, I also agree with the finding that the guards and matrons on duty during Mr. Silverfox's incarceration were not provided with adequate supervision.
In addition to the RCMP's current review of national policy with the view of making amendments to more clearly identify responsibilities related to prisoner log book documentation and review, prisoner responsiveness and enhanced level of care for prisoners, detachment policy review is ongoing as a result of significant changes occurring in Whitehorse with the construction of the new Yukon Secure Assessment Centre.
Additionally, I can inform the Commission that effective communication in the Whitehorse Detachment cell block is emphasized on a regular basis and a special Corporal position has been created for the purpose of enhancing supervision in the cell block area.
I support the recommendation that the RCMP implement directives concerning the requirement to note and communicate, by way of the cell log book, prisoner condition generally and where illness is possible and/or suspected, as well as cell condition when foreign matter or bodily substances are present.
Although I conclude that policy requirements with respect to the provision of medical assistance will continue to have some elements of subjectivity, I agree with the finding that RCMP policy in this area is inadequate in that it requires revision and improvement.
I support the recommendation that, in consultation with medical professionals, policy be further refined. The RCMP is currently undertaking this review of policy and this has involved consultations with local medical professionals.
I support the recommendation that the RCMP create a consultative group that includes medical professionals in order to strengthen national operational policy regarding the provision of medical assistance for persons in RCMP custody. I can inform the Commission that the RCMP is implementing this initiative.
I support the recommendation that the RCMP provide members new to the Whitehorse community with an orientation whereby local medical professionals may address the recognition of medical issues arising from alcohol or drug consumption and that members already working in the area be provided with similar training.
I agree with the finding that the reasons for which the existence of the guardroom audio appeared to be unknown are unclear.
I support the recommendation that the RCMP appoint an independent investigator to review the circumstances surrounding the late or non-disclosure of the audio and to report the findings of such a review to both the RCMP and the Commission. The RCMP has in fact referred the matter to the Lethbridge Regional Police Service for investigation. A copy of the investigation report outlining the findings will be provided to the Commission once it is completed.
I agree with the finding that Constable Corbett, Constable Kalles, Constable Kay tor and Constable Telep failed to act in accordance with the RCMP Act and the RCMP's core values in respect of their interactions regarding Mr. Silverfox.
I conclude that every employee of the Whitehorse Detachment is responsible for maintaining a respectful environment. Accordingly, I support the recommendation that all members of the Whitehorse Detachment, as well as the guards and matrons employed by the detachment, be provided with training on creating a respectful environment and interacting in a manner consistent with the RCMP's core values, within both the Detachment and the larger community.
I agree with the finding that the criminal investigation undertaken into the in custody death of Mr. Silverfox was impartial, thorough and well documented, and although the assigned investigators were not external to the RCMP, measures taken to ensure their independence were appropriate in the circumstances.
I agree with the finding that the administrative review regarding the criminal investigation and cell block operations was thorough and well documented.
I agree with the finding that the public complaint investigator took all reasonable investigative steps appropriate in the circumstances.
In closing, I would like to thank you for your report and your ongoing work which will inform our continuing efforts to ensure the RCMP has in place appropriate policies, procedures and practices.
I look forward to receiving the final report in this matter.
Yours sincerely,
William J.S. Elliott, Q.C.
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