C-163 - Conduct Appeal

The Appellant has appealed the decision of the RCMP conduct authority, (Respondent) who found one allegation established, contrary to section 5.1 (use of excessive force) of the RCMP Code of Conduct. The Respondent imposed a forfeiture of 10 days’ pay and a reprimand. 

This appeal relates to an arrest made by the Appellant of an intoxicated man and while this man was in custody in a cell block, the Appellant is alleged to have used excessive force to subdue the prisoner. There was a second allegation filed against the Appellant for having failed to complete and attach the Subject Behaviour/Officer Response Report. However, the Respondent found that allegation not established.

On appeal, the Appellant argues that the Respondent’s decision was clearly unreasonable because it was based on a flawed Use of Force Report and failed to consider relevant case law relating to police use of force. The Appellant further argues that the conduct measures are clearly unreasonable because the Respondent failed to consider several mitigating factors.

During the appeal process, the Appellant learned that the Respondent received a corrupted video of his statement to the investigative agency. The Respondent explained that although they did not have a working version of the video, the investigative agency had also provided a transcript of the Appellant’s full statement. The Appellant nevertheless argues the lack of video caused a breach of procedural fairness. Lastly, the ERC, upon request, received materials from the Respondent relating to their request for an extension under section 47.4(1) of the RCMP Act. The Appellant proceeded to challenge the extension received.

The ERC first found that since the Appellant was notified of the Respondent’s request to extend the time limit under section 42(2) of the RCMP Act and chose to remain silent at the time, he cannot now challenge the decision to extend those time limits on appeal. The ERC further found that there was no breach of procedural fairness regarding the lack of video recording of the Appellant’s statement to the investigative agency. It found that since the Respondent had the transcript of the statement and met with the Appellant in person, there was no breach of procedural fairness. Regarding the Respondent’s reliance on the Use of Force expert report, the ERC found that reliance not clearly unreasonable. The expert had considered all surrounding circumstances, was aware of the limits of reviewing an incident with hindsight and took the Incident Management Intervention Model into consideration.

Lastly, the ERC found that the Respondent’s decision on conduct measures was clearly unreasonable because they did not consider an important mitigating factor that they had previously found was present.

The ERC recommends that the appeal be allowed in part regarding the conduct measures. It recommends that the conduct measures be reduced to five days’ forfeiture of pay.