Executive Summary: Chair-Initiated Complaint Regarding the In-Custody Death of Mr. Raymond Silverfox

The Facts

On the night of December 1, 2008, Mr. Raymond Silverfox of Carmacks, Yukon Territory, was celebrating his 43rd birthday. He and his girlfriend secured a drive to Whitehorse, a 2.5-hour drive away. Upon arrival in Whitehorse in the early hours of December 2, 2008, the two found lodging at the Salvation Army shelter. Once at the shelter, Mr. Silverfox began to vomit. Shelter staff called Emergency Medical Services (EMS), knowing that Mr. Silverfox would not be taken into custody by the RCMP without first being medically cleared. EMS personnel attended and cleared Mr. Silverfox, determining that his vital signs and responses were within the normal range despite his intoxication. However, Mr. Silverfox could not remain at the shelter due to his vomiting, so EMS personnel called the RCMP in the hope that Mr. Silverfox could be incarcerated for the night, as it was extremely cold outside.

Constable Len Van Marck and Constable Daniel Bulford attended the shelter. Mr. Silverfox was arrested for public intoxication and booked into cells shortly after 5 a.m. Mr. Silverfox remained in RCMP cells throughout the day while he continued to be sick. Some of those instances were noted by the guards and/or matrons and members present in the guardroom, but most were not. However, Mr. Silverfox's cell became increasingly contaminated with his bodily fluids. Throughout this time, members and guards may be heard discussing Mr. Silverfox's condition on the audio recording of the guardroom. Few physical checks were conducted in respect of Mr. Silverfox, although he continued to be monitored through use of the closed-circuit video equipment.

At approximately 6:34 p.m., Watch Commander Corporal Calista MacLeod checked on Mr. Silverfox and noted that he did not appear to be breathing. Finding no vital signs, Corporal MacLeod directed that an ambulance be called. EMS personnel arrived in the cell block at approximately 6:47 p.m. and took over care of Mr. Silverfox, who was transported to the Whitehorse General Hospital a short time later. Although the paramedics were successful in briefly regaining a pulse, efforts to resuscitate Mr. Silverfox ultimately failed and he was pronounced dead at 9:15 p.m. A subsequent autopsy determined that Mr. Silverfox had died of sepsis and acute pneumonia, and the autopsy findings suggested aspiration pneumonia.

The investigation into Mr. Silverfox's death was conducted by the "E" Division Major Crime Unit. The Commission for Public Complaints Against the RCMP (the Commission) dispatched one of its independent observers to conduct an impartiality assessment, and no material concerns were identified. The criminal investigation was forwarded to Crown counsel, who determined that no charges were warranted.

An administrative review of the incident was subsequently conducted and a number of recommendations were made in the report, issued May 26, 2009. On June 16, 2009, Inspector Mark Wharton, the Commanding Officer of the Whitehorse RCMP Detachment, responded to those recommendations, making a number of changes to detachment policies and practices.

Shortly before the coroner's inquest into Mr. Silverfox's death in custody, which ran from April 15 to 23, 2010, it was realized that audio tape of the cell block guardroom had not been transcribed. The audio track captured members, guards and matrons commenting on Mr. Silverfox, the condition of his cell, and his illness. Two weeks after the conclusion of the inquest, the RCMP announced that a Code of Conduct investigation had been initiated in respect of this matter.

The Complaint

On December 12, 2008, the then Chair of the Commission initiated a complaint into the in-custody death of Mr. Silverfox with a view to determining:

1. whether the RCMP members or other persons appointed or employed under the authority of the Royal Canadian Mounted Police Act (RCMP Act)involved in the events of December 2, 2008, from the moment of initial contact and arrest to the subsequent detention and death of Mr. Silverfox, complied with all appropriate training, policies, procedures, guidelines and statutory requirements relating to persons held in RCMP custody and, in particular, to providing access to medical treatment;
2. whether the RCMP members at the Whitehorse RCMP Detachment provided adequate supervision and direction to the guard or guards who were charged with the care and handling of prisoners in the custody of the Whitehorse RCMP during the period of Mr. Silverfox's detention and subsequent death; and
3. whether the RCMP national, divisional and detachment-level policies, procedures and guidelines relating to the provision of medical treatment to persons detained in RCMP custody, in particular relating to those who are detained where the consumption of alcohol is a factor, are adequate to ensure their proper care and safety.

Key Issues Addressed in the Commission's Interim Report

1. Initial contact with and arrest of Mr. Silverfox

Constable Van Marck and Constable Bulford, upon determining that EMS had cleared Mr. Silverfox for incarceration and Salvation Army staff would not let him remain at the shelter, arrested him for causing a disturbance by reason of his intoxication in a public place. The arrest was reasonable and consistent with law and policy. Mr. Silverfox walked to the police vehicle unassisted and sat in the back seat, and he was driven to the detachment. The desire of EMS personnel and the members to avoid Mr. Silverfox being left outdoors in the extreme cold was the main factor leading to his arrest, and the members' decision was reasonable in the circumstances.

2. Booking into cells

The members booked Mr. Silverfox into cells without incident. However, they failed to take a breath sample with the Alcohol Screening Device (ASD), which was required by detachment policy. They indicated that they did not believe it to be necessary, as Mr. Silverfox had been medically cleared for incarceration. However, the policy is prescriptive in terms of the needs to administer the ASD; it does not provide an exception for circumstances in which an individual has been seen by medical personnel. In addition, there was no information suggesting that the EMS attendants had taken a blood alcohol reading from Mr. Silverfox.

Constable Bulford assessed Mr. Silverfox's responsiveness as required by policy, and it is apparent on the cell block video that Mr. Silverfox was responding to questions and the members' instructions during the booking process.

3. The first guard shift

After Mr. Silverfox entered his cell, he was noted by the guard on duty, Craig MacLellan, to be "dry heaving." Close to 8 a.m., senior member Corporal Gale attended the guardroom, as did Watch Commander Corporal Calista MacLeod. Neither member performed a physical check of Mr. Silverfox, and Corporal MacLeod, although she reviewed the Prisoner Reports, did not question the lack of an ASD reading for Mr. Silverfox. However, neither the guard nor any other member provided Corporal MacLeod with information relating to Mr. Silverfox's physical state. In fact, there was no indication from either member who had brought Mr. Silverfox in or from Craig MacLellan that the importance of transferring information regarding those in RCMP custody was recognized.

Craig MacLellan made notations regarding Mr. Silverfox at time intervals that were within accepted limits and irregular, as required by policy, but there were no notations indicating whether the checks performed were physical checks, or checks by way of the video monitor. The cell block video shows that only one of the checks was a physical check. RCMP policy specifically states that a video monitor check does not constitute a check of the prisoner, and accordingly, there were an insufficient number of checks performed in respect of Mr. Silverfox during the first guard shift.

Although physical checks may appear to be a cumbersome and often unnecessary process when video monitoring is in place, it is incumbent upon members and guards to recognize that physical checks are vital in assessing prisoner responsiveness, as well as noting prisoner appearance and behaviour. Although the advent of new monitoring technology is useful, it should, as noted in policy, be used to supplement direct observation and not to replace it.

4. The second guard shift

The second guard on duty, Ms. Heather Balfour, did perform a physical check of Mr. Silverfox upon beginning her shift, at approximately 7:40 a.m. Ms. Balfour also made notations at time intervals that were within accepted limits and irregular, as required by policy, but as previously, there were no notations indicating whether the checks performed were the required physical checks. The cell block video indicated that she performed seven physical checks during her approximately eight‑hour shift.

Ms. Balfour noted during her shift that Mr. Silverfox vomited on five occasions and could be seen dry heaving on six occasions. Between 11 and 13 instances of vomiting and/or dry heaving were missed or not noted in the only available record of prisoner activity. During this time, it was apparent that the cell was becoming more and more contaminated. The cell block video clearly shows an increasing amount of fluid on the cell floor. This fact was noted by Ms. Balfour, who, contrary to RCMP policy, told Mr. Silverfox that he would have to clean up his cell. This threat was not carried out.

Constable Jeffrey Kalles, present in the guardroom at various points throughout Mr. Silverfox's incarceration, indicated that Ms. Balfour had told him at approximately 3 p.m. that Mr. Silverfox had urinated, defecated and vomited, and that he was still intoxicated after being in cells for ten hours. Constable Heather Kaytor, another member intermittently present in the guardroom, stated that Mr. Silverfox's vomiting was apparent, but believed to be simply a result of his intoxication.

5. The third guard shift

Hector MacLellan took over from Ms. Balfour just before 3:30 p.m. He could not recall seeing Mr. Silverfox vomit while he was on shift. Mr. Silverfox in fact appeared to have vomited three times during the shift. Hector MacLellan made notes in the cell log book in respect of Mr. Silverfox at intervals of exactly 15 minutes—contrary to RCMP policy requiring that time intervals be irregular—between 3:30 p.m. and 6:01 p.m. None of the checks performed, beyond the initial one, was a physical check. The monitoring of Mr. Silverfox at this time was entirely inadequate.

Constable Kaytor, Constable Connelly and Constable Kalles, as well as Constable Geoff Corbett and Constable Shirley Telep, were in the guardroom at various times during Mr. Silverfox's incarceration. Constable Corbett noted that Mr. Silverfox had urinated and defecated on himself, and spoke with him at 3:49 p.m., refusing his request for a mattress. Neither he nor the other members remarked anything physically unusual about Mr. Silverfox.

Corporal MacLeod, as Watch Commander, did not return to the guardroom or the cell block intermittently during her shift, as required by policy. Corporal MacLeod stated at the coroner's inquest that she trusted that the guards on duty would inform her of any issues with the prisoners. Watch Commanders should not find themselves surprised by a condition that has been developing over the course of some eight hours. Corporal MacLeod failed to ensure that she was aware of emergent issues in the cell block, in large part because she failed to periodically check on Mr. Silverfox as required by RCMP policy.

6. The death of Mr. Silverfox

At 6:34 p.m., Corporal MacLeod learned from Hector MacLellan that Mr. Silverfox had been sick throughout the day, and she checked on him at 6:41 p.m. Corporal MacLeod could not see Mr. Silverfox breathing and called out to him, as did Hector MacLellan. Mr. Silverfox did not respond.

Hector MacLellan opened the cell door at 6:43 p.m., and no vital signs were noted in respect of Mr. Silverfox. Immediately upon determining that Mr. Silverfox was unresponsive, Corporal MacLeod directed that an ambulance be called, consistent with RCMP policy in this respect.

Corporal MacLeod began chest compressions on Mr. Silverfox, along with Constable Kendra Hannigan, Constable Benjamin Douglas and Constable Chris Pratte. EMS arrived at 6:47 p.m. and took over care of Mr. Silverfox. Mr. Silverfox was transported to the hospital and arrived in the emergency room of Whitehorse General Hospital at 7:16 p.m., where efforts to resuscitate him continued. Mr. Silverfox was pronounced dead at 9:15 p.m. A toxicological screen did not reveal elevated levels of alcohol or the presence of drugs. A later autopsy concluded that Mr. Silverfox had died of sepsis and acute pneumonia. The report added that "[p]ostmortem cultures grew several bacterial organisms suggestive of aspiration pneumonia." The report noted that an "overwhelming infection" likely led to Mr. Silverfox's death. It also noted that chronic alcoholism was a likely contributory factor.

7. The RCMP's duty of care

Under the rubric of the general duty of care owed by the RCMP to persons in its custody are the provision of medical attention and the conditions in which prisoners are incarcerated. Both issues resonate strongly in the case of Mr. Silverfox.

Mr. Silverfox was in the Whitehorse RCMP Detachment cells for almost 13 hours at the time of his death. He had been ill for virtually the entire length of his stay. However, as was demonstrated in the cell block video, he was left virtually alone as a number of individuals—members, guards and civilians—entered and exited the guardroom of the Whitehorse RCMP Detachment. However, as was stated by many of them, they did not think to seek medical assistance for Mr. Silverfox, as they assumed that he was simply "sobering up," or that he continued to be intoxicated. Nonetheless, RCMP policy does not provide an exception to the need to seek medical care for ill prisoners in cases where those prisoners are suspected or known to be intoxicated.

Mr. Silverfox vomited over 20 separate times in the span of 13 hours. He continued to vomit at regular intervals, and the frequency and severity of his sickness did not diminish during his time in cells. Despite all of this, no medical assistance was sought for Mr. Silverfox prior to the determination that he was no longer breathing. It is apparent that the members and guards on duty failed to seek medical assistance for Mr. Silverfox as his illness continued.

As respects the conditions in which Mr. Silverfox was housed, it is clear from the cell block video that the condition of Mr. Silverfox's cell deteriorated rapidly throughout the day as he continued to be ill. However, there were no efforts made to address the fact that Mr. Silverfox was incarcerated in what amounted to deplorable conditions.

RCMP policy does not allow deviation from the minimal standard of safe and habitable cells. If, as in the case of Mr. Silverfox, an individual has become so violently ill as to contaminate a cell to the degree that it is difficult to find a clean area in which to sit or lie down, the cell is neither safe nor habitable, and the situation must be addressed in order for policy compliance to be achieved. While both members and guards bear responsibility for complying with the requirement that cells be appropriately maintained, the ultimate accountability for the condition of the cell block rests with the senior member on duty, in this case Watch Commander Corporal MacLeod.

8. Direction and supervision of guards

It is apparent that the guards and matrons on duty failed to check on Mr. Silverfox, as required by RCMP policy. Nonetheless, that policy was outlined in detail in the guard training program completed within the prescribed time limits by each guard and matron. Despite the fact that policy compliance was not achieved, the guards and matrons were provided with adequate direction.

Perhaps the most vital element of supervision is ensuring that relevant guidelines, directives and policies are complied with. It is beyond doubt both that the guards and matrons on duty did not comply with policy regarding checking on prisoners, and that this fact was not noted or corrected by any RCMP member, including the senior member on duty. Accordingly, the guards and matrons on duty were not provided with adequate supervision.

9. Provision of medical care

Several existing RCMP policies require the provision of medical assistance for prisoners suspected of being ill. With the exception of immediately seeking medical assistance when responsiveness cannot be established, the policies were not complied with.

The existing policies are difficult to apply, as they require a subjective assessment of a prisoner's condition. In the Commission's view, it is inadequate to allow the provision of medical assistance to depend solely on a subjective assessment of the need for such assistance.

A community consultative group, including the medical community, which would, in part, review the issues of public intoxication and the medical care of intoxicated persons in Whitehorse, has already been established. However, there would be benefit in the RCMP's creation of such a group at the national level.

Finally, the public does not expect its police officers to possess the same expertise with respect to the recognition of medical symptoms and issues as would a health professional. However, there is value in providing training beyond basic first aid regarding medical issues that may arise from particular behaviours present in our communities, specifically alcohol intoxication and drug impairment.

10. The guardroom audio

Of the cameras recording the events in and around the cell block, the only one equipped with audio recording capabilities is the one recording a portion of the guardroom. It was not made available during the administrative review or cited during the criminal investigation. There is no evidence of deliberate withholding of the audio. However, the reasons for which its existence was to all appearances unknown are unclear.

Apparent on the audio are instances in which Mr. Silverfox's illness is noted and disregarded or, in the most egregious of cases, openly mocked by members, guards and matrons. The RCMP's national operational policy states that persons in RCMP custody will be treated with decency. Equally, the basic standards required to be upheld by all members and enshrined in the RCMP Actrequire members to act in a courteous, respectful and honourable manner, and to maintain the honour of the RCMP. Indeed, the core values of the RCMP include professionalism, compassion and respect. Accordingly, the implicated members displayed conduct that fell far short of that required of members of Canada's national police force.

The attitude displayed by the individuals involved coloured each of their interactions with Mr. Silverfox, resulting in Mr. Silverfox's illness not being taken seriously and being seen as a natural consequence of his intoxication. There is great danger in failing to recognize that each person in custody must be treated as an individual and not simply as representative of a category of persons. Mr. Silverfox provides a tragic example of the dangers of classifying someone as "just another drunk."

11. The investigations into Mr. Silverfox's death

There were no concerns relating to the impartiality of the criminal investigation into the in‑custody death of Mr. Silverfox.

Equally, an administrative review of the investigation was conducted by a senior RCMP member. He was responsible for evaluating compliance with certain aspects of RCMP policy by those involved in the events surrounding Mr. Silverfox's death, and identified a number of deficiencies in the application of national, divisional and detachment-level policy respecting cell block operations at the time of Mr. Silverfox's death. Inspector Wharton, the Whitehorse Detachment Commander, responded to these recommendations by taking actions designed to rectify the deficiencies noted. The administrative review, much like the criminal investigation, was thorough and well documented.

Finally, the public complaint investigation carried out in response to the Commission Chair's complaint was completed by an experienced investigator working within a specialized unit in a separate division. It is clear that the need for an investigator with as high a degree of independence as possible was recognized and addressed. The public complaint investigation was responsive to the Chair's complaint.