Tuesday, September 22, 2009

RCMP intention without action is useless

Superintendent Wayne Rideout appeared again at the Braidwood Inquiry and talked about the RCMP's ability to conduct investigations of itself. Speaking personally, he said the present system results in an unwinnable predicament, that competently conducted investigations are not perceived by the public to be fair, or reported as such.

With that disingenuous or naive comment, the officer ignores proven defects of certain internal investigations, preferring to fault the perceptions of people outside police agencies. He could have said, "The problem is not with us, it's you guys." Maybe the RCMP did a fine job investigating the YVR death but the public just doesn't understand.

Rideout stated that senior management has repeatedly discussed alternative approaches and tried over many years to improve procedures used when actions of RCMP members are reviewed.

On the face of it, that seems a reasonable position to be voiced by one of the more senior RCMP officers in British Columbia. The part left unexplained though is why shocking situations have occurred with unfortunate regularity. Despite comments and criticisms over many years by countless qualified parties, substantive practice changes appear to be minimal. Behavior that offends modern management practice is tolerated, even that which is plainly illegal.

See The Globe and Mail, Gary Mason: Proposed civilian unit to look into police not all it seems.

I intend to examine a few cases apart from Dziekanski and Bush, two of British Columbia's highest profile police involved tragedies. The consideration is whether or not the problems indicate systemic disorder or isolated failures of individuals.

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Case 1: Sulz v. Attorney General of Canada, et al.

After six successful years, a female member's service with Merritt RCMP became problematic following appointment of a new detachment commander. In mid-1995, her difficulties were taken up with the divisional staff representative and she submitted a detailed written history of harassment by supervisors.

The detachment's commanding officer had been found involved in prior incidents of harassment at an earlier posting. Another detachment supervisor admitted saying to the member that as a female she had to work twice as hard as a male member and three times as hard to regain his trust.

Despite informal efforts at resolution, continuation of difficulties led to a formal investigation of harassment complaints. That continued until 1998. Three years after allegations were raised, the charges were upheld but no disciplinary action was taken because the commander retired. The complainant remained mostly on sick leave until she discharged for medical reasons. The force encouraged her to accept this outcome and she did so but filed a statement of claim.

After awarding $950,000 and generous level 4 costs, the trial judge stated, "This was a difficult trial containing numerous issues, the complexity of which is not readily apparent from these reasons [for judgment]."

Despite that caution, lay readers of the court documents will readily sympathize with the RCMP female member who was left unsupported and ill-used over a number of years by what the judge called a male-oriented paramilitary, out of touch with standards of current days. In addition, the defense fought to overturn the award on appeal. They lost that effort in December 2006, more than a decade after the initial complaints.

For 11 years, this lone individual -- denied union representation by statute -- stood at odds with supervisors at the RCMP. Courts held that she was victimized by a superior with a prior record of harassment. In 1997, a Staff Sargent serving as divisional staff relations representative wrote:
There is always another side to this BUT if any of this is true, S/Sgt. S. should not be in the position he is in. . . . Another question that has to be researched is the fact that S/Sgt. S may have been investigated for harassment of a female member a few years ago while stationed in the Yukon and the outcome is believed to be founded. If this is true WHY is this man still in a command position?

The performance of the senior levels of RCMP management was incompetent and profligate in this case. Add the judgment and plaintiff costs for trial and appeal to the defense costs, the internal investigatory expenses and the costs of wasted training and medical and retirement leaves. Now factor in the human tolls in lost and ruined careers. The final tab is immense, in the range of $3 million cash.

This trouble and waste resulted from failure to act promptly and effectively despite widely known misbehavior of detachment commanding personnel. One must conclude that higher level officers were prepared to tolerate or support illegal harassment.

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Case 2: R. v. Fidler

This current case is noted because it reveals that a small RCMP detachment failed to follow police policies, used excessive force, kept inadequate records, erased video evidence and gave faulty testimony in court. Four separate police officers were criticized by a Supreme Court Justice, including the detachment's acting supervisor.

Justice Madam Koenigsberg acquitted a man on a charge of aggravated assault, saying she did not believe testimony from the Mounties involved in his arrest. She says officers used excessive force in subduing Andrew Fidler following his arrest in October 2006 for assault, and breached his charter rights.

The judge was troubled also by failure of the police to keep records required by policy and to make complete and timely disclosures to the court. Additionally, the judge noted the RCMP decided to conduct an improper search and seizure despite knowing that to be illegal.

Based on Reasons for Judgment, Justice Koenigsberg, 09/14/09

In October 2006, two Burns Lake RCMP members investigated an assault complaint. That led to a violent arrest and incarceration of one Andrew Fidler. He complained of pain in the morning and asked to be taken to the hospital. He was taken to the hospital (handcuffed behind his back by Constable Wamsteeker). During his examination by an emergency room doctor, he was still handcuffed behind his back. Fidler testified the doctor asked that the handcuffs be removed so proper x-rays could be taken. He testified Constable Wamsteeker refused to remove them.

Under cross-examination, Constable Wamsteeker had no recollection of much of this event, and had made no notes. The only documentation of Fidler’s stay overnight at the detachment and his hospital visit were cryptic guard logs and a form filled out by Constable Wamsteeker. That form contained no dates and the form contained at the least, inaccurate information as to what was found at the hospital when Fidler was examined there. Fidler’s evidence of what occurred at the hospital was proved likely very accurate and was not consistent with the evidence of Constable Wamsteeker.

Constable Esson provided assistance during struggles at the jail. He made no notes of his involvement with Fidler that evening despite policy that violent interactions between police officers and detainees are to be documented in Incident or Occurrence Reports. There was no such report.

In addition, as acting supervisor at the time, Constable Esson was asked about documentation practices at the Detachment in 2006. He testified that he did not recall if video cameras were in place or if they were operating if they were in place. He was unaware if any video tape had been requested by anyone of the “violence” on the part of Fidler. Subsequently, court was advised that cameras were trained on the booking counter as well as within cells and that logs were kept of all activity and the video cameras were operating October 19, 2006. Evidence was given that disks were to be made of video surveillance of “violent incidents” within the Detachment.

Constable Esson was questioned about the policy within the Detachment regarding prisoners taken to the hospital. He testified that generally a form may be filled out. He testified the form isn’t always filled out. He thought there might be some old forms under the counter. He testified he didn’t know if there was a “paper trail” documenting Fidler going to the hospital for complaints of pain in his rib area.

The guard logs relevant to Fidler’s stay during the late evening of October 19 and early on October 20, were not disclosed until after Constable Esson’s evidence. When the log was produced it showed Fidler’s request to go to the hospital and that he was transported there. It also noted that the cameras were operating in the cell area on October 19, 2006.

Throughout the trial, difficulties were encountered with disclosure of documentation from the Burns Lake Detachment. Not only was there late disclosure, the disclosure was piece meal and necessitated the Court, in exasperation the last few days of the trial, to order the entire file of Fidler’s encounters with the Burns Lake Detachment on October 19-20, 2006 to be brought to Court.

The effect of the late disclosure, lack of disclosure, lack of record keeping and what can only be described, as a somewhat cavalier attitude toward documentation of violent incidents and the taking of prisoners to the hospital, at least as displayed by Constable Esson, who at the time was Acting Supervisor at the Burns Lake Detachment, coupled with the accuracy and truthfulness of Fidler’s evidence, when documentation was disclosed or found to support it, leads to the following conclusion. Generally, when Fidler’s evidence conflicts with that of the Constables, Fidler’s evidence is preferred.

The police officers both testified that, Occurrence Reports are to be done when there is a violent incident. No such report was done or if it was it has never been disclosed. Neither Constable remembered writing one up. Constable Esson did not make any notes of his involvement despite his evidence of Fidler’s violence” and his application of “pain control”. Despite the availability of a video tape of the cell block booking counter area on October 19, 2006, no one thought to have a record of that incident made, apparently until over a month later when it had apparently been taped over. Thus the court is left with two versions of whether there was a need for violence causing pain from the Constables to Fidler.

In the absence of documentation, which should be present in the form of Incident or Occurrence Reports and the failure to make a copy of the video recording of the event – the court prefers Fidler’s account of the incident. I do not believe that Fidler actually posed a serious threat to the Constables justifying punching him as described, such that he was taken to the hospital next day in serious pain.

There is one last issue to address . . . Constable Ferris re-attended the Fidler residence. . . . he thought he smelled marijuana. He phoned the Detachment for instructions . . . was advised he could not investigate further. After asking Fidler, then in cells, if he would allow entry of his home and being refused – the Constables took Fidler’s keys which had been seized during his arrest, and entered his home and found a relatively small marijuana grow operation.

All the plants and equipment were seized. No prosecution was initiated. A decision was made apparently . . . to effect what is known as a “no case seizure”. In other words, the RCMP know that their actions in investigating and then searching and seizing property are unlawful and cannot be used as evidence in court and decide to seize the property anyway. . .

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Case 3: RCMP and Justin Harris

Cst. Justin Harris faced internal code of conduct charges after an RCMP report produced in 2002 named him in a complaint from at least one prostitute. The RCMP decided to proceed against Cst. Harris in 2005 but an internal disciplinary hearing was halted days after it started. The panel of three senior officers from outside the province ruled that the RCMP had failed to investigate complaints against Harris within a one-year time limit.

Assistant RCMP commissioner Gary Bass testified that police didn't do anything about it at the time because allegations were being made against as many as nine officers in Prince George and Bass said most were thin, third-hand and lacked corroboration.

Asked whether he would have ordered a criminal investigation after reading the direct complaint from the woman against Harris, Bass replied "I don't know," adding that the investigator who wrote the report didn't indicate whether he believed the prostitute.

In a statement of claim filed in B.C. Supreme Court in 2008, Cst. Justin Harris said he suffered a psychological condition that made him "unfit to return to his regular policing duties for an indeterminate time" as a consequence of an RCMP investigation into allegations he and other officers paid to have sex with teen prostitutes.

The prostitutes were at the heart of the case against former judge David Ramsay, who was found guilty of committing sexual offenses against the underage sex workers and sentenced to seven years in prison in June 2004.

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Case 4: RCMP and Tim Korman

Six weeks after a sexual harassment complaint was dismissed due to procedural errors, the RCMP officer at the centre of the issue was promoted. Sgt. Tim Korman is currently stationed in Rosthern, Sask., but four years ago when he was a corporal in the Buffalo Narrows detachment he was accused of sexually harassing an officer under his supervision.

An investigation determined the allegation was well-founded, but a discipline process related to the complaint was terminated because the Saskatchewan commander at the time, Darrell McFadyen, botched the paperwork.

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1 comment:

  1. I agree that the Constables should have followed policy much closer but there are many things left out.

    Was Fidler known to the police? If so what was past behavior like and what were the circumstances to his initial arrest? Why was he initially even combative with the RCMP? The RCMP "in general" do not simply get in altercations with the public, but they do use preventative measures (in protecting themselves) due to past behavior and unknown circumstances. Unfortunately, "pain control" IS needed...just to what level?

    How long was the involvement of Cst. Esson (acting supervisor at the time) with this case. Was it hours, minutes, etc? If he was simply used to assist in the lodging of Fidler into cells would he see the need to document his involvement after maybe only being used for a few minutes?

    What detatchment is this? From other articles I have read, I believe I know the answer, do you know that STATS on the following facts...
    1. How much service did these Constables have at the time? In particular, who gave Cst. Ferris the keys (or did he simply take them and then who went with him)to enter the residence? Did the 'actual' not the 'Acting Supervisor' turn a blind eye and why was that individual not on the stand? With Cst Wamsteeker, I am curious to his length of duty as well at the time of this incidence, his involvement simply was as transport to the hospital. I cannot wrong him for that.
    2. In this small northern community, do you know how violent it is and what kind of working conditions these Csts are in?
    3. Initially, the members could not remember if there was a paper trail for the hospital visit on Fidler's request, which later in the article shows that there was. Rather poorly done but it was documented to some effect which then leads to; why were the medical recods not pulled to show what kind of injuries Fidler sustained and why was the attending physician also not pulled into court? If he was truly, injured would that not be supported by the medical records rather than going on heresay?

    There are too many loose ends for me to pass judgment on these Constables. In my opinion, they were doing the best they could due to the lack of leadership and guidance, it may have elavated to a level that was not intended but with solid management/leadership it could have been avoided all together (that is if my assumptions of these members being relative rookies is right).

    Interesting article. Too bad for everyone involved.

    ReplyDelete

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