Presentation by Paul E. Kennedy, Chair of the Commission for Public Complaints Against the RCMP

Transcription

1 Commission for Public Complaints Against the Royal Canadian Mounted Police Commission des plaintes du public contre la Gendarmerie royale du Canada Presentation by Paul E. Kennedy, Chair of the Commission for Public Complaints Against the RCMP Canadian Association of Police Boards 20 th Anniversary Conference August 14, 2009 Sydney, Cape Breton, Nova Scotia 1

2 The conference description for today s panel references three elements that are at the forefront of the minds of Canadians today. They are: 1) the use of force by the police; 2) the principles of good police practice as articulated by Sir Robert Peel, in particular the recognition that the ability of the police to effectively perform their duties is dependent upon public approval of police actions; and 3) the role played by oversight bodies in respect of the use of force by police. I personally believe that policing is essential to public safety which in turn is a cornerstone upon which democracy is based. That being said it must also be acknowledged that distrust is an essential feature of a democracy. If citizens did not jealously guard their rights, they would quickly lose them. It is therefore natural that as a government agency, such as the police, acquires more resources and powers, and as it intrudes more deeply into the lives of citizens, that level of distrust will increase. Traditional institutions such as the courts and the media have had some success in addressing the public s need for greater transparency and accountability, but each, for a variety of reasons, is insufficient to address current public expectations. 2

3 The natural concern of the public has been further heightened as governments have responded to an evolving, complex and threatening public safety environment by providing the police with a broad range of investigative powers such as: the authority to intercept private communication the authority to break the law to enforce the law; the listing of organisations as being terrorist; and, most recently, the stated intention to facilitate the interception of Internet communications. All powers that are more intrusive, and more covert, than those traditionally accepted by the public. The police have responded in kind to the changed public safety environment by developing innovative police practices and techniques as evidenced by the proliferation of joint task forces and various integrated police units designed to deal with the border, proceeds of crime, national security, and commercial crime. Further blurring the lines of jurisdiction and, by extension, public accountability. Thirty years ago an officer upon being sworn in would be issued a revolver. Today the standard kit is comprised of a semi-automatic 9mm pistol, a baton, and OC pepper spray. All cadets are trained as well to use a 12-gauge pump action shot gun and some nine thousand members of the RCMP are also trained and equipped with a conducted energy weapon. 3

4 This environment is further overlaid by the increasing diversity within Canadian society and the correspondingly diverse perspectives and expectations of police and last, but not least, the wide range of Charter of Rights and Freedoms rulings that directly impact upon how police successfully discharge their responsibilities. The policing function, which essentially is an expression of the need to ensure that citizens voluntarily keep the peace and obey the law, is common to most societies. The early inhabitants of England had the custom of appointing one of their own citizens to fulfill an unpaid policing function for a year. In urban settings this person was paid and was called The Watch. At that time one could truly say that the public were the police and the police were the public. The establishment of Sir Robert Peel s famous Metropolitan Police was a move away from that community police model. This was a move forced by the public safety threats flowing in the early 1800s from the growth of urban centers and the accompanying breakdown of social order. In recognition of the challenge posed by the creation of a professional police force to the traditional relationship between police and the public we saw the articulation of Sir Robert Peel s nine principles of policing. Although all are still applicable today, I would like to focus on two of those principles; 1) Police use physical force to the extent necessary to secure observance of the law or to restore order only when the exercise of persuasion, advice and warning is found to be insufficient; and 4

5 2) police, at all times, should maintain a relationship with the public that gives reality to the historic tradition that the police are the public and the public are the police; the police being only members of the public who are paid to give full time attention to duties which are incumbent on every citizen in the interest of community welfare and existence. In light of this I pose the following question: In a complex public safety world, how does the average citizen acquire the knowledge and experience to determine whether police actions are balanced and appropriate or to determine when the use of force is justifiable? The reality today is that the citizen cannot adequately make that assessment and institutions such as the media and the courts are insufficiently equipped for a number of reasons. It is for all of these reasons that we have observed the creation and strengthening of civilian oversight bodies. I believe one of the central roles for such bodies is to restore and maintain the public s confidence in the police. They can accomplish this goal through two main activities: First, the investigation and review of individual complaints concerning the conduct of police officers. Second, the identification of systemic problems, be they inadequate policy or training, that may be the root cause of the conduct that gave rise to the complaint. 5

6 A careful analysis of trends emerging from individual complaints should inform one as to the existence of larger systemic problems. In my opinion, police services, like all self-regulating bodies, are finding it increasingly difficult to maintain public confidence. Their justifications for their actions are increasingly viewed as biased and self-serving. Today the public wants and the police need a knowledgeable, impartial arbitrator who can dispassionately investigate the facts and render a credible finding as to the appropriateness of the officer s conduct; an arbitrator, who can offer constructive remedial recommendations to improve the officer s performance and potentially effect systemic changes. As I indicated earlier, not all fault related to inappropriate conduct can be laid at the feet of the individual officer. I have found instances where the officer was merely following training or applying operational policy. It is with respect to these larger systemic issues that I believe civilian oversight bodies may be able to make a significant contribution; a contribution that helps bridge the divide between the police profession and the general public that they serve and which would give meaning to the principle that the police are the public and the public are the police. 6

7 The work that my Commission conducted in respect of CEWs is a good example of the role that we can play in advancing a number of Sir Robert Peel s principles as they apply to the use of force. In May 2006, I issued a report concerning the use of a CEW in push stun mode against an intoxicated woman. The initial application of the CEW took place in her home and two later applications took place while she was handcuffed at the police detachment and refusing to enter cells. The woman in question was approximately five feet tall and, but for the initial encounter at her residence, engaged in no more than passive resistance. I found that the CEW was used in a manner akin to a cattle prod to hurry her along. The failure of all police officers involved in that incident, including the officer whose conduct was called into question, his immediate supervisor, the police complaints investigator and the senior police officer who ruled on the merits of her complaint, to express any concern regarding the use of the CEW in these circumstances indicated to me that there was a larger systemic issue at play; one that was rooted in the philosophical approach within the force to use of the CEW. In my report dealing with that individual complaint I recommended that the RCMP: 1) reconsider where the CEW should properly fit within the use of force paradigm; 2) redefine resistant behaviour; 3) review training policies; 7

8 4) ensure that trainers who are not experts in the use of force restrict training to the technical aspects of CEW use; and 5) improve data collection and tracking on all use of force options. As a general rule police services are reluctant to make major and systemic changes in response to individual cases. There is a natural tendency to view them as exceptions rather than as examples of a larger trend. Following the tragic events in October 2007 at the Vancouver airport where Robert Dziekanski, a recent immigrant to Canada, died following deployment of a CEW, I was asked by then Public Safety Minister Day to conduct a broad-based review of RCMP policies and practices as they related to the CEW. I issued an Interim Report in December of 2007 and a Final Report in June of 2008 which contained a total of 22 recommendations. Both reports can be found on the Commission s Web site: ComplaintsCommission.ca. We examined all aspects of RCMP use of CEWs from 2001 to 2007 including the police research that led to its introduction in 2001, the subsequent evolution of the CEW operational policy and training, as well as data concerning the frequency of use and the circumstances in which it was deployed. What we found was of some concern. By way of example we found: 8

9 1) the CEW was introduced in 2001 as an alternative to deadly force. By 2004 much of the policy constraint upon its use had been removed and it had become, in many situations, the tool of choice for members to resolve conflict with members of the public. It was frequently used before recourse to soft or hard hand tactics, pepper spray and, in some cases, verbal intervention. 2) It was deployed more often than not against those under the influence of drugs or alcohol or those who suffered from mental illness. It is of some note that members of both of these groups have been identified in research as being at risk of a fatal outcome following a CEW incident. 3) CEWs were frequently used in push stun mode and against individuals who were engaged in passive resistant behaviour. In other words, they posed no threat to the officer, themselves or the public. 4) Youth, both boys and girls as young as 13 and 14 years old, were exposed to the CEW in both probe mode and push stun mode. 5) We also found very poor record keeping. By way of illustration, we conducted a mini-audit whereby we sought to locate in the police records reference to the complaints of inappropriate CEW deployment that had been appealed to the Commission. Sixty-eight percent of the complaints relating to actual deployment could not be found. One hundred percent of the incidents where the use of the device was threatened could not be found. It was evident that there had been significant under-reporting of CEW usage. I pointed out that the CEW was subject to usage creep. It had moved from a less than lethal force alternative to a come-along device. Operational policy shift had taken place 9

10 absent any substantive research or analysis. There was no reliable data collection on actual usage and no research was being conducted of the data that was available. I am pleased to report that significant changes have taken place within the RCMP following the issuance of these reports. In addition to changes to RCMP training and operational policy surrounding the circumstances in which the CEW may be deployed they are implementing the Subject Behaviour/Officer Response Program which will track all uses of force, not just the CEW. The Commission has issued a separate report for the calendar year 2008 concerning CEW usage by the RCMP and will be issuing follow-up reports for the calendar years 2009 and I can advise you that CEW use was down 30% in 2008, when compared to There was a drop of about 30% in push stun mode where most inappropriate use had occurred. Furthermore, in a significant departure from previous years, the CEW was deployed in probe mode or push stun mode in just 50% of the cases. You may ask yourself whether these changes in police policy, training and data collection would have occurred but for the role of the civilian oversight body. In the lines of debate concerning the merits of the CEW were fairly firmly established and championed by three distinct communities. 10

11 On one side you had the safety concerns as expressed by NGOs led by Amnesty International, on another, you had Taser International, the device manufacturer, which relied upon its success in the court to buttress its position, and thirdly you had the police community which found itself in possession of a tool that, in most instances, provided quick control while holding the promise of reduced injury to both the officer and suspect. The public was increasingly confused by the arguments and counter-arguments which polarized the debate and underlined the general assumption that the public was not being offered a balanced, impartial and knowledgeable assessment of CEW usage. As an oversight body, we played the essential role of an independent arbitrator that provided an informed civilian perspective on police actions. We asked the questions that the police typically had not asked. In addition, we saw the problems that the police themselves may not have seen. The essential role played by civilian oversight agencies is a given within most, if not all, western democracies. All provinces within Canada, but for Prince Edward Island, have civilian oversight bodies. PEI has, I believe, introduced legislation to establish such a body. Not only do such bodies exist, but, Ontario, Saskatchewan, Alberta, Manitoba and British Columbia have taken or are taking steps to further enhance the powers of their oversight bodies. 11

12 The federal government has also undertaken to strengthen both the legislative mandate and financial resources in respect of civilian oversight of the RCMP. All of these steps are a clear recognition of the vital role that civilian oversight plays in bridging the divide between the public and the police and I believe, through constructive recommendations, helps to restore and maintain public confidence in the police. 12