Interim Report on a Chair-initiated Public Complaint Regarding the Use of a Conducted Energy Weapon on an 11 Year-old Boy in Prince George, B.C.

Royal Canadian Mounted Police Act Paragraph 45.42(3)(a)

File No.: PC-2011-1194

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Introduction

On April 7, 2011, an 11-year-old youth was subject to the use of a conducted energy weapon (CEW) during a police response to a stabbing incident by members of the Prince George RCMP Detachment, in British Columbia.

In recognition of concerns expressed about the use of force by RCMP members, the Commission for Public Complaints Against the RCMP (Commission) will on occasion exercise its authority on behalf of the public, to examine in depth the facts that give rise to the public's concern as well as the adequacy of the RCMP's investigation of the events in question. This report examines the circumstances that led to the deployment of a CEW against a youth. It will address the events that led to the use of the CEW, the reasonableness of the CEW deployment, the adequacy of the applicable RCMP policies, and the investigation into the incident.

OverviewFootnote 1

On April 7, 2011, an 11-year-old youth escaped from the Taborview Group Home for high-risk youth located in a rural area of Prince George, British Columbia. At approximately 5:30 p.m., the Prince George RCMP was contacted to respond to a report of a stabbing at the group home. The call to the RCMP stated that the 11-year-old youth had stabbed a group home worker and was still at large, in possession of a knife.

RCMP dispatch contacted one of the staff members of the group home who was still at the scene. The caregiver explained that the youth was a very high-risk youth who had broken into a travel trailer where he found knives, and that after he stabbed one of the caregivers, the youth barricaded himself into the main residence.

When the first RCMP members arrived at the scene, they sought information from staff members who had witnessed the events and who had personal and professional knowledge of the youth. The information obtained suggested that the situation was very high risk, that it could escalate further, and that the youth was likely to hide and to attack the police officers if they tried to gain control of him.

Several intervention options were considered by the RCMP members who further attempted to de-escalate the situation through communication and containment. As the risk of grievous bodily harm to others and of self-harm for the youth was not diminishing, the members attempted to entice the youth out of his barricaded hideout, which ultimately resulted in the deployment of the CEW to gain control of the youth.

The Chair-intiated Public Complaint

On April 14, 2011, following public concerns about police use of force, in particular the use of a CEW in such circumstances, the Interim Chair of the Commission initiated a complaint (Appendix C) pursuant to subsection 45.37(1) of the Royal Canadian Mounted Police Act (RCMP Act). The complaint outlined three issues:

  1. Whether the RCMP members or other persons appointed or employed under the authority of the RCMP Act involved in the events surrounding the apprehension of the unidentified 11-year-old youth on April 7, 2011, complied with all appropriate training, policies, procedures, guidelines and statutory requirements relating to police use of force;
  2. Whether the RCMP's national-, divisional- and detachment-level policies, procedures and guidelines relating to the use of CEWs are adequate;
  3. Whether the actions taken by the RCMP in response to the incident were taken in accordance with all applicable policies, procedures, guidelines and statutory requirements for the conduct of such an investigation, and whether such policies, procedures and guidelines are adequate.

Pursuant to the RCMP Act, the complaint was investigated by the RCMP. According to the RCMP Act, on completion of the investigation the RCMP Commissioner (or his delegate) shall provide a Final Report, summarizing the results of the investigation and any action taken to resolve the complaint. In this case, the RCMP's Final Report dated May 8, 2013 (Appendix D) found that the actions taken by the RCMP in response to the incident were taken in accordance with all applicable policies, procedures, guidelines and statutory requirements for the conduct of such an investigation, and that the policies, procedures and guidelines are adequate. The Final Report also identified that an ambulance was not dispatched to the scene: the RCMP's national operational policy states that whenever possible, in medically high-risk situations (which include deployment in respect of children), members should request medical assistance before using the CEW. As a remedy, the Final Report stated that the Officer in Charge (OIC) of the Prince George RCMP Detachment was directed to ensure that this national policy requirement be brought to the attention of all members under his command, including those involved in the incident.

In accordance with subsection 45.42(1) of the RCMP Act, the Commission is required to review any complaint initiated pursuant to subsection 45.37(1) of the RCMP Act. This report constitutes my review of the RCMP's investigation into the issues raised in my complaint, and the associated findings.

A summary of my findings and recommendations can be found in Appendix A.

Other Review Processes

The following reports, while serving a different mandate and purpose than the ones of the Commission, were considered as part of this review.

On August 25, 2011, the West Vancouver Police Department issued its report of the external investigation into the CEW deployment. The RCMP had requested, pursuant to its External Investigation or Review policy,Footnote 2 that the West Vancouver Police conduct a criminal investigation into the use of the CEW on the youth. The West Vancouver Police Department found that the officers were in the lawful execution of their duties; the actions of the officers on scene were reasonable given the ongoing risk assessment that was conducted; various negotiations were attempted with the youth; several use of force options were discussed yet not all were appropriate given the high-level risk of injury; and lastly, the force used was reasonable given that the level of force was commensurate with the threat presented, and the age of the youth was secondary to his necessary apprehension under the circumstances. However, the external investigation was not able to ascertain why ambulance services were not called to attend.

As part of the West Vancouver Police Department's external investigation, an independent expert opinion had been requested from Mr. Joel A. Johnston, who had significant CEW experience, been qualified in legal proceedings across Canada as a use of force expert, and was a member of the RCMP working group that redesigned the Incident Management/Intervention Model (IM/IM). In his August 15, 2011, opinion, the expert provided a substantial analysis of the facts of the case while applying the IM/IM and the RCMP's CEW policy. He concluded that the RCMP members acted appropriately, as they made a thorough risk assessment and made considered decisions in respect of the response options they chose to employ in a high-risk situation. However, he also found that the only policy that was not adhered to was in regard to the medical aftercare, as there was no medical assistance standing by at the scene, nor had a request for same been made.

On February 7, 2013, the Representative for Children and Youth in British Columbia released a report that examined in detail the youth's history in regard to youth welfare practice standards. It did not examine the question of whether the use of a CEW by police was justified, as it recognized that this issue had been examined during the external investigation by the West Vancouver Police Department with the assistance of a use of force expert.

Commission's Review of the Facts Surrounding the Events

It is important to note that the Commission is an agency of the federal government, distinct and independent from the RCMP. When reviewing a Chair-initiated complaint, the Commission does not act as an advocate either for the complainant or for RCMP members. As Chair of the Commission, my role is to reach conclusions after an objective examination of the evidence and, where judged appropriate, to make recommendations that focus on steps that the RCMP can take to improve or correct conduct by RCMP members. In addition, one of the primary objectives of the Commission is to ensure the impartiality and integrity of RCMP investigations involving its members.

My findings, as indicated below, are based on a thorough review of the extensive investigation materials, the criminal investigation report, the applicable law and RCMP policy. It is important to note that the findings and recommendations made by the Commission are not criminal in nature, nor are they intended to convey any aspect of criminal culpability. A public complaint involving the use of force is part of the quasi-judicial process, which weighs evidence on a balance of probabilities. Although some terms used in this report may concurrently be used in the criminal context, such language is not intended to include any of the requirements of the criminal law with respect to guilt, innocence or the standard of proof.

It should be noted that the RCMP's "E" Division provided complete cooperation to the Commission throughout the Chair-initiated complaint. In addition, the RCMP provided the Commission with unfettered access to all materials contained in the original investigative file and all materials identified as part of the public complaint investigation. Unless otherwise noted, the members named in this report are referred to by their rank at the time this incident occurred.

FIRST ISSUE: Whether the RCMP members or other persons appointed or employed under the authority of the RCMP Act involved in the events surrounding the apprehension of the unidentified 11-year-old youth on April 7, 2011, complied with all appropriate training, policies, procedures, guidelines and statutory requirements relating to police use of force.

The events of April 7, 2011

The following account of events stems from the information collected as part of the public complaint investigation. These facts are put forward, as they are either undisputed or because, based on a preponderance of evidence, I accept them as a reliable version of what transpired.

1. The youth's history with the group home

The investigation of the Representative for Children and Youth, referred to above, was precipitated as a result of the use of a CEW against the 11-year-old; however, it examined the entire history of the youth's care, including all reported incidents that took place before and after the CEW incident. Based on this report, as well as statements collected from the caregivers after the incident, it appears that the youth's interaction with the group home presented a number of challenges for all concerned. The report stated: "There is no doubt that the child who is the subject to this report presents behavioural issues that are extremely challenging for caregivers."Footnote 3

These after-the-fact descriptions of the youth's history, behaviour and interactions with caregivers were not known in their entirety to the RCMP members at the time of the incident; they are provided only to illustrate the context in which the caregivers dealt with the youth and to provide awareness of the mindset of the staff when they contacted the police for assistance.

The youth resided at a residential care facility for youth under the responsibility of British Columbia's Ministry of Children and Families. The youth had been moved to a rural location due to incidents and concerns in other neighbourhoods. Under the care of the residential facility, it was required that the youth be supervised by two staff members at all times due to documented incidents of violence and unpredictability in his behaviour. For one of the senior workers, this was something that he had never seen in his experience working in group homes. The youth had a suite, which included a padded "safe" or "quie" room where he would go to settle down when he was out of control. This room was designed as a result of a recommendation from a children's hospital, and a psychiatrist had recommend such a measure as early as when the youth was 8 years old.Footnote 4 It was used after the youth had hit and injured caregivers.

From the accounts of the care workers, the youth was not an "average" 11-year-old. He had on a number of occasions displayed what they considered to be "super strength" during episodes of violence, which carried a risk of injury to others and himself. One staff member described having been assaulted many times by the youth, including punches to the face and kicks to the groin. He also stated that the youth had previously thrown things at him with the intent to hurt him, and that when the youth is angry the difficulty of controlling him requires two adults. The extraordinary measures put in place to supervise the youth further included one staff member having designed a padded armour to deal with the youth in moments of rage, and the staff holding weekly meetings to debrief on the events of the week and formulate ideas to deal with the youth's behaviour.

2. The events that led to the 911 call

On April 7, 2011, the youth was noted to be in a good and cooperative mood during the day. Later on, he became agitated and barricaded himself in his room using furniture. Two of the care workers discovered that the youth was missing from his bedroom and had escaped through the window. They contacted a manager and began a lengthy search around the property, which was at that time covered in snow. After approximately one hour, the youth was located in a travel trailer outside the group home. The youth had acquired steak knives and was yelling while stabbing, slashing and puncturing upholstery inside the trailer.

At one point, the youth jumped out the window and escaped. He threw one knife to the ground, and moved towards a fence. Believing that all knives had been dropped, the group home manager approached the youth to try to take control of him; that is when the youth stabbed him below the ribs.

3. The 911 call and the information received

The stabbing prompted one of the care workers to call 911 while on her way to the hospital with the victim. She reported that an 11-year-old had just stabbed a staff member at the group home. The caller stated that the youth was still present at the residence, and she provided the phone number of another care worker and asked the call-taker to contact him.

At 5:33 p.m., the call-taker contacted one of the staff members that remained at the scene. The staff member stated that the youth had initially broken into a travel trailer and found knives, using one to stab a caregiver. He added that the youth was a high-risk youth, and that he had initially been concerned with the youth being at large with a knife and possibly going missing. The staff member had knowledge of critical incident reports involving the youth at the group home, and he informed the call-taker that the youth was extremely violent and hard to reason with. He added that it was going to be difficult to get the knife away from the youth, that the youth had extraordinary strength, and that he would "hide and leap out and attack with a knife."

The staff member confirmed with the call-taker that the youth had barricaded himself inside the main residence and stated that he was concerned that if police were to enter, the youth would attack them.

4. The RCMP's initial response

 The RCMP officers who were dispatched to the scene of the incident had no prior knowledge or recognition of the youth or the location of the incident, although 31 police files existed in relation to incidents involving the youth and past issues of aggression from 2007 to 2011.

The members who initially attended were told by dispatch that the complainant believed the situation would require physical intervention and that the youth "will hide and burst out to try to stab a member."

At 5:45 p.m., Constables Kyle Sharpe and Daniel MacIntosh were the first members to arrive at the scene. They were shortly followed by Corporal Jayson Davidson. The members collected further information and were briefed by care workers who had witnessed the unfolding of the events and who had prior knowledge of the youth's behaviour and the potential risk that the situation involved. In talking to the witnesses, the members were informed of the care workers' concerns over the youth's strength; the requirement that two adults supervise the youth; the existence of a padded safe room; the fact that one care worker had designed padded body armour; the youth's knowledge of the house and access to knives; and the workers' belief that if police were to go in the house the youth would try to ambush them. With regard to the youth's health, the police were informed that he had mental health issues, hearing difficulties and that he was on medication; however, there was no specific information about the medication involved or any indication of whether the youth had a heart condition.

At 5:56 p.m., the CEW-equipped member, Constable Chad Fitzpatrick, arrived at the scene. The decision to have a CEW option present was made by Sergeant Todd Gray at the Prince George RCMP Detachment. Sergeant Gray has considerable tactical experience with emergency response teams, and felt the need to have a viable less-lethal response option at the scene. Upon arrival, Constable Fitzpatrick received further briefings by the other members at the scene. The members had ongoing discussions about various intervention options throughout the incident.

The members first resorted to methods of containment and negotiation. Constables Sharpe and MacIntosh made verbal attempts to de-escalate the youth's behaviour and attempted to negotiate with him while he was visible through an upper floor window in the main residence. The youth appeared unaffected by the presence of police officers. It was known that the youth had found a bottle of wine and started drinking. At one point, the youth cut a window screen open with a knife and put his upper body out the window. The youth repeatedly continued to show a knife he was holding to the members, using it to slash his own shirt and running the blade over the palm of his hand. He later threw a wine bottle and glass out the window onto the driveway below.

As the situation developed, there appeared to be no reduction in the display of knives, their handling and the consequential risk of harm. Accordingly, the members resorted to attempting to entice the youth to exit the residence. The members were able to have some conversation with the youth, who indicated that he wanted to go home and that he wanted his blankets. Arrangements were made to have his blankets retrieved by a staff member. While waiting for his blankets, the youth grew impatient, and found a basket from which he pulled more knives; one of them he threw out the window.

At one point, the youth made the sign of a cross and started to talk about his grandmother. A caregiver told the officers that this was a very bad sign and things were about to get worse.

5. The deployment of the CEW and use of force

The members discussed various intervention options during the entirety of the incident. The use of a police dog was quickly determined not to be an option, given the greater risk of injury to the youth and the presence of other dogs. The deployment of oleoresin capsicum spray was determined to carry the risk of added agitation on the part of the youth. To avoid using their side arms and posing an even greater risk to the youth, the members decided not to enter the residence and risk giving the youth an opportunity to attack.

The posting of notes at one exit door eventually worked to entice the youth out of the house. Constable Fitzpatrick had moved closer to the door and was ready to use the CEW. He had told Constables Sharpe and MacIntosh that if the youth "opened the door again and was not surrendering, the CEW would be deployed."

The youth came out a first time, and the members continued their attempts to negotiate. Constable Fitzpatrick could not see the youth from his position, but he was informed that he still had a knife in his hand.

Constable Fitzpatrick believed that the "CEW would be the best intervention method, as it would keep everyone at a safe distance given the circumstances and could prevent [the youth] from inflicting injury on himself as well. "There was nonverbal communication between the members that preceded the deployment of the CEW: Constable Fitzpatrick gestured to Corporal Davidson that the CEW would be used, and Corporal Davidson nodded an acknowledgement. The youth appeared once more, standing at the door, and one member said aloud that he could not see the youth's hands. Another added, "He's got something in his hands." Constable Fitzpatrick positioned himself, believing that the youth was still holding a knife. He did not issue a CEW warning, as he believed it to be unsafe; then, he deployed the CEW. The prongs contacted the youth in the upper shoulder and lower hip, and Constable Fitzpatrick maintained a five-second cycle. At that point Constables Sharpe and MacIntosh swiftly attended to and secured the youth. The prongs were immediately removed.

The investigation that followed led to the downloading of the CEW information, which confirmed that the CEW had been deployed for one 5-second cycle. The CEW log book of the Prince George RCMP Detachment was duly completed by Constable Fitzpatrick, and noted that the CEW had been signed out and signed back in the same day.

The caregivers who observed the police action stated that no hasty decision was made when the police were discussing options and ideas among themselves. A number of them also noticed that anytime the youth was visible, he had a knife.

6. Post-CEW deployment

A caregiver stated that the members did extensive follow-up with the youth after the deployment of the CEW. The youth was conscious and alert after the deployment, calling for his mother. He was asked if he had any injuries, to which he said no and that he just wanted his mother. Although an ambulance was said to be on standby, none was called to the scene, and the youth was taken to the hospital in a police vehicle.

The medical records pertaining to the youth's admission at the hospital were retrieved during the investigation by the Representative for Children and Youth. They revealed that the youth had been seen by two doctors; both stated that the youth functioned at the level of a five-year-old. There were marks reported around the youth's upper arm and hip area where it was presumed the CEW prongs had contacted him, but no other injury was reported.

Analysis

Training requirements

The record shows that at the time of the incident, all members involved had the required training with respect to first aid and the Incident Management/Intervention Model (IM/IM). Members are exposed to the IM/IM from their earliest days of training as the process by which they should assess, plan, and respond to situations that have the potential to threaten public and member safety. It is a model designed to aid members to formulate appropriate intervention responses by considering the attendant risk factors. In its report in response to the Chair-initiated complaint, the RCMP further specified that the Province of British Columbia also required an annual recertification course, and that every three years, members are required to attend a five-day operational skills training course that includes further IM/IM-based scenario and first aid training.

With respect to the CEW-equipped member, it was specified that Constable Fitzpatrick met all the training requirements at the time of the incident, including CEW, IM/IM, and first aid training. When the incident took place, CEW training within the RCMP required the completion of a two-day course, which provided instructions, practice sessions with the weapon, and scenario-based training. The RCMP noted that annual recertification is mandatory and that the training standards were further enhanced to add an online CEW course, an online Critical Incident De-escalation course, an in-class Critical Incident De-Escalation course, and an Automated External Defibrillator training course.

In light of the foregoing, I find that the RCMP members involved in the events of April 7, 2011, possessed all appropriate training.

Finding: All of the members involved complied with the training requirements.

Use of force

When responding to calls from the public, RCMP members are subject to the duty provisions of the RCMP Act and, in particular, paragraph 18(a), which states:

It is the duty of members who are peace officers, subject to the orders of the Commissioner, (a) to perform all duties that are assigned to peace officers in relation to the preservation of the peace, the prevention of crime and of offences against the laws of Canada and the laws in force in any province in which they may be employed, and the apprehension of criminals and offenders and others who may be lawfully taken into custody . . .

In executing their duties, police officers are guided by policy and are authorized by the Criminal Code to use as much force as is necessary.Footnote 5 However, the officer must be acting on reasonable grounds. Police officers are also justified in using as much force as is reasonably necessary to prevent the commission of an offence for which a person may be arrested without warrant, or that would be likely to cause immediate and serious injury to the person or property of anyone; or to prevent anything being done that he or she believes, on reasonable grounds, would be the commission of such an offence.Footnote 6

In determining whether the amount of force used by the officer was necessary, one must look at the circumstances as they existed at the time the force was used. The courts have been clear that the officer cannot be expected to measure the force used with exactitude.Footnote 7

It is clear in this case that the members were acting in the course of their duties. They had been called to respond to and investigate a reported stabbing by a youth considered high-risk who was armed and barricaded. They possessed reasonable grounds to believe that the youth had committed and could commit more grievous bodily harm. The members also reasonably believed that the youth had to be apprehended due to the threat he posed to himself and to others. The members were required by law to attempt to secure the safety of the public and of the youth.

Given that the members were engaged in the lawful execution of their duties when they entered into their interactions with the youth, the reasonableness of the use of the CEW must be determined. The core issue in the review of this incident, and that which appears to have prompted public concern, is the use of the CEW to subdue the youth given his age. Under the Criminal Code, the CEW is a prohibited firearm and can only be used by law enforcement officers. The Commission has been steadfast in its position that when used appropriately, the CEW can be an effective tool for the RCMP. The Commission has also maintained that the CEW causes intense pain; it may exacerbate underlying medical conditions; and it has been used in situations where its use is neither justifiable nor in accordance with RCMP policy.

The Commission made a number of recommendations to the RCMP in its report RCMP Use of the Conducted Energy Weapon (CEW) in June 2008, its Report Following a Public Interest Investigation into a Chair-Initiated Complaint Respecting the Death in RCMP Custody of Mr. Robert Dziekanski in December 2009, as well as a number of other reports issued by the Commission since the RCMP began using the CEW. Many of those recommendations have been implemented by the RCMP; some have not.

At the time of the incident, RCMP policy provided that:

[A] CEW must only be used in accordance with CEW training, the principles of the Incident Management/Intervention Model (IM/IM) and when a subject is causing bodily harm, or the member believes on reasonable grounds, that the subject will imminently cause bodily harm as determined by the member's assessment of the totality of the circumstances.Footnote 8

In this case, the members appear to have determined that the CEW would be the best intervention method to keep everyone at a safe distance in the circumstances and to prevent the youth from inflicting injury to himself.

For the use of the CEW to have been reasonable and consistent with policy, as with all cases of use of force, the deployment of the CEW must have been in accordance with the principles of the IM/IM. The IM/IM is used to train and guide membersFootnote 9 in the use of force and provides guidelines that are based on situational factors to determine whether to use force, and what type and amount of force is necessary in the circumstances. The main objective of any occurrence response and intervention is the safety of police officers and the public. A graphic of the IM/IM is attached as Appendix F.

The essence of the IM/IM is that it promotes a continuous risk assessment and focuses on the RCMP problem-solving model known as CAPRA. The CAPRA acronym stands for the stages included in the problem solving model: Client/Acquire and Analyze/Partnerships/Response/Assess. The CAPRA model requires members to consider all relevant situational factors when determining what actions to take, including whether to use force and, if so, the necessary amount of force to use in the circumstances. Situational factors are as varied as the incidents to which they apply and may include the environmental conditions, the perceived subject's demeanour and abilities, proximity to weapons, and threat cues. These factors are the basis upon which a member will make the assessments called for in the IM/IM. Members are required to assess the risk posed by a subject, followed by a determination of the appropriate level of response, which may include the use of force.

The IM/IM conveys the concept of proportionality between a person's behaviour and the police response when considering all the circumstances. A high-risk situation, such as where a person is considered on reasonable grounds to be armed and dangerous, will indicate that a high-risk arrest is likely and that intermediary to lethal impact weapons may be drawn.

It is incumbent upon the member to perform a risk assessment, first determining which of the five behaviour classifications (cooperative, non-cooperative, resistant, combative and potential to cause grievous bodily harm or deathFootnote 10) the subject's actions fall into. Consideration must also be given to the situational factors specific to each incident. These include weather conditions, subject size in relation to the member, presence of weapons, number of subjects and of police officers, the perceived abilities of the subject (which may include past knowledge of the subject), as well as other incident-specific considerations.

The IM/IM sets out various response or intervention options specific to the member's determination of subject behaviour in conjunction with the assessment of the situational factors. Intervention options include member presence, verbal intervention, empty hand control (soft and hard), intermediate devices, impact weapons, lethal force and tactical repositioning. As diagrammed, in recognition of the dynamic nature of these incidents, the IM/IM is not a linear structure such that one response necessarily leads to another. Rather, the IM/IM is intended to train RCMP members with respect to the need to constantly assess the risk and potential for harm and to respond at an appropriate level.

Verbal interventions and tactical repositioning occur regardless of the level of risk to assist the member in maintaining control of the situation, de-escalating any confrontation and ensuring maximal safety for all concerned. Throughout the management of an incident, a member should be alert to threat cues such as body tension, tone of voice, body position and facial expression to ready them to use an appropriate response option. These threat cues may indicate the potential for a suspect to display more or less resistant behaviours described under the categories of resistance that would justify the use of different response options.

In this case, the age factor was thoroughly embedded in media responses to the incident; however, the nature of the risk assessment and intervention option chosen cannot be limited to a snapshot of the young suspect's age. It requires a concrete and contextual analysis of the risk assessment described above. All the circumstances, including the age as one of the situational factors as well as the youth's behaviour, are relevant when assessing the risk and appropriate level of response.

In reviewing the youth's behaviour and intentions in this case, it is clear that the youth had already shown behaviour threatening grievous bodily harm or death. As per the IM/IM, this means:

The subject exhibits actions that the officer reasonably believes are intended to, or likely to cause grievous bodily harm or death to any person. Examples include assaults with a knife, stick or firearm, or actions that would result in serious injury to an officer or member of the public.Footnote 11

The threat cues indicated that the youth was prepared to use a knife and commit grievous bodily harm. The stabbing victim was a manager at the group home and was well known to the youth. The stabbing resulted from the manager's attempt to stop and control the youth. The youth continued his handling of knives and made threatening gestures. This case was a fluid situation where the information pointed to a predictable threat of grievous injury through a knife in the hands of an unpredictable and difficult-to-control youth.

The Commission must also assess whether, as per the IM/IM, the intervention method was reasonable and proportional to the risk presented by the youth. The concept of risk in itself is inherent to the concept of possibility since it requires one to assess the possibility of loss, injury, or any other unwelcomed circumstances arising out of a fluid and often unpredictable situation.

In this case, the members were not merely acting on a hunch that the youth might attack with a knife and cause harm: they were aware that the youth had stabbed a staff worker; the youth had a history of unpredictable violence; the staff had difficulty controlling the youth during outbursts of violence; the youth possessed knives; the staff warned the police in clear terms that the youth would try to ambush and attack them; the youth was intoxicated; loose dogs were present; the youth had the potential to self-harm demonstrated by gestures of running the blade against himself; and a staff member had warned that the situation was about to get worse when the youth made a sign of the cross. The consideration of all of these factors led to an immediate need for the police to assert control of the situation.

The use of a CEW as an intermediate weapon became a reasonable option to address the risk, but it was not the first or the only option discussed prior to its use. In considering the intervention options, the Commission must also consider the fact that to ensure public safety, police officers cannot be asked to intervene in dangerous situations, yet be denied the authority to take protective measures to their safety when reasonable, especially when there is a danger due to the presence of weapons and of a fluid and unpredictable threat. The members were told in clear terms that the youth would likely attack them if they attempted to control him. Among all the intervention options considered, the CEW appeared to be the most reasonable option to secure the youth, with the least comparative risk of harm to the youth and to others.

The witnesses to the incident averred that the members did not hastily make a decision. The record shows that the members' response was progressively guided by the information gathered and the observations made at the scene.

In light of the situation and behaviour confronting the attending RCMP members, I find that the deployment of the CEW, which followed reasonable yet unsuccessful attempts at de-escalation, was reasonable and consistent with the applicable legislation and policy, as detailed above.

Finding: The members' use of force was reasonable and consistent with the applicable legislation and RCMP policy.

Notwithstanding the foregoing, I note that no CEW deployment warning was provided to the youth before the discharge. Constable Fitzpatrick stated that he did not feel that it would be tactically safe to do so. The RCMP's national operational policy relating to the use of the CEW states:

Where tactically feasible, members will issue a verbal warning so the subject is aware that a CEW is about to be deployed.Footnote 12v

Having regard to the circumstances, I find that it was reasonable for the member not to issue a warning. Doing so would have potentially hampered the efforts of the members to entice the youth out of his barricade, the failure of which could reasonably have resulted in an increase both to the level of intervention required, and to the risk to the youth and bystanders. I find that the decision to prioritize a safe and immediate immobilization of the youth in these circumstances was reasonable.

Finding: It was reasonable for Constable Fitzpatrick not to issue a warning of the CEW deployment.

Provision of medical assistance

There is limited policy regarding to the arrest of persons under the age of 12, and the RCMP's national operational policy relating to the CEW does not mandate that the weapon not be deployed in respect of young persons. However, the policy does recognize youth as constituting a high-risk medical group, the presence of which requires that medical assistance be requested prior to the use of a CEW, where possible. The policy states:

Whenever possible, in medically high risk situations, request medical assistance before using the CEW. If medical assistance is not requested or a CEW deployment is necessary before the arrival of medical assistance, obtain medical assistance as soon as practicable.Footnote 13

The RCMP concluded in its Final Report that it would have been preferable to have an ambulance on standby status at the scene; however, that report cited as the basis for that finding national operational policy requiring that medical assistance be sought when responding to reports of acutely agitated or delirious persons.

In this instance, BC Ambulance Service personnel had been requested to be on standby, but they were ultimately not requested to attend. Following its public complaint investigation, the RCMP directed the Officer in Charge of the Prince George RCMP Detachment to ensure that the national policy requirement be brought to the attention of all members under his command, including those involved in the incident. I conclude that this constitutes a reasonable response to this issue, which satisfies the remedial goals of the public complaint process.

Finding: I am satisfied that the direction given by the RCMP to the Officer in Charge of the Prince George RCMP Detachment reasonably addresses the requirement to ensure that medical assistance is requested in medically high-risk situations, where possible.

SECOND ISSUE: Whether the RCMP's national-, divisional- and detachment-level policies, procedures and guidelines relating to the use of CEWs are adequate.

General policy relating to use of force

In its Final Report, the RCMP acknowledged that the policy remains in a continual state of development. It also reproduced a significant excerpt of a use of force expert's analysis of the CEW in the context of the IM/IM policy, CEW policy, and the Braidwood recommendations. It found that the current RCMP national-, divisional- and detachment-level policies, procedures, and guidelines relating to the use of CEWs are adequate.

The RCMP's national operational policy in relation to the CEW, last modified on March 25, 2012, considers youth subjects to constitute a "medically high risk situation."Footnote 14 The impact of this classification is explained in the deployment aftercare portion of the RCMP policy, as reproduced above. Other than mandating a request for medical assistance, the policy contains no further precaution or restriction about the use of CEWs on children or youth.

In this context, it is of interest to consider that the CEW manufacturer's user warnings include specific language about its use on children. In general, the manufacturer's warnings recommend avoidance of targeting the frontal chest area near the heart to help reduce the possibility of inducing cardiac capture, and resultant serious injury or death. I note that the manufacturer's updated warnings from 2013 specifically state that cardiac capture "may be more likely in children and thin adults because the heart is usually closer to the CEW-delivered discharge . . ." The warnings therefore recommend avoidance of sensitive areas and targeting of preferred target areas (shown in blue in the graphic below), which are below the neck for impacts on the back, and the lower centre mass for impacts on the front. This graphic is already reproduced in the RCMP's national operational policy relating to the CEW to illustrate in general the preferred targeting areas when using CEWs on any person:Footnote 15

Image source: TASER International, Inc., "Taser Handheld CEW Warnings, Instructions, and Information: Law Enforcement", March 1, 2013, page 3.

Moreover, the manufacturer provides a warning concerning "Higher Risk Populations," in which it includes pregnant, infirm, elderly, or low body-mass index persons, as well as small children. It stresses to "[u]se a CEW on such persons only if the situation justifies an increased risk." (emphasis in original)Footnote 16 The manufacturer explains that deployments in such circumstances could increase the risk of death or serious injury and that, as with other use of force options, the device's use has not been scientifically tested on those higher-risk populations.

While no scientific research was conducted on children, some studies have found, based on the examination of past occurrences and comparative research, that children may be part of a population more at risk of adverse effects of a CEW discharge than higher-weight adults.Footnote 17 This higher risk could be due to a shorter distance from the CEW probe to the heart, and it is now mentioned in the manufacturer's CEW user warnings (the dart-to-heart distance).

While the current RCMP policy identifies the need for medical assistance in medically high-risk situations, it does not go as far as the manufacturer's most recent warnings in explaining why these situations are defined as high-risk and what further precautions are applicable to these situations. For example, the policy does state that "[a]cutely agitated or delirious persons may be at a higher risk of death,"Footnote 18 but it does not state that cardiac capture may be more likely in "children and thin adults"Footnote 19 and that "CEW use on a pregnant, infirm, elderly, or low body-mass index person or on a small child could increase the risk of death or serious injury."Footnote 20

In light of the foregoing and in order to increase knowledge and awareness among CEW users as well as contribute to the continuing development of RCMP CEW policy, I recommend that the RCMP update its policy to reflect the manufacturer's most recent warnings about high-risk populations, including reference to the language more specific to children and other vulnerable persons. Doing so would complement the current state of the policy, which already incorporates a substantial part of the manufacturer's information, such as the preferred target areas for the use of the CEW in general.

I note that even if the facts of the incident were to be considered in light of these recent warnings from the manufacturer, the deployment of the CEW would still have been within the recommended guidelines, given that the CEW was only used because the situation justified the increased risk, and the preferred target areas were properly engaged.

Recommendations: That the RCMP incorporate into its CEW policy the specific language found in the CEW manufacturer's warnings, including the following:

  1. Medically high-risk populations (namely, pregnant, elderly, or low body-mass index person or small child) may be at a higher risk of death or serious injury.
  2. The CEW should only be used on medically high-risk persons if the situation justifies an increased risk.
  3. Where the situation justifies the risk, whenever possible, avoid sensitive areas and target preferred target areas, given the increased risk of having the CEW-delivered discharge closer to the heart.

THIRD ISSUE: Whether the actions taken by the RCMP in response to the incident were taken in accordance with all applicable policies, procedures, guidelines and statutory requirements for the conduct of such an investigation, and whether such policies, procedures and guidelines are adequate.

The actions in respect of the youth

The RCMP's Final Report found that the criminal investigation into the actions of the eleven-year-old youth was completed by the Prince George RCMP Detachment's General Investigation Section. It was concluded that charges were not applicable due to the youth's age and his not being old enough to be processed under the Youth Criminal Justice Act.

With respect to the criminal investigation into the youth's actions, I agree that no charge could be laid, as section 13 of the Criminal Code specifies that "[n]o person shall be convicted of an offence in respect of an act or omission on his part while that person was under the age of twelve years."

The actions in respect of the members

At the time of this incident, there was no civilian criminal investigative body in British Columbia. However, an independent external investigation was requested as required by the RCMP's External Investigation or Review policy, which led to the West Vancouver Police Department being tasked with the investigation as well as external review by a use of force expert.

The RCMP's Final Report, in response to the current Chair-initiated complaint, was itself the result of an investigation by members external to the Prince George RCMP Detachment, and the incident was equally subject to an independent officer review by an officer from the Vancouver Island District.

The several investigations undertaken into this incident allowed for a full collection of statements from all civilian witnesses and from the RCMP members involved in the matter. A review of the record indicates that all members involved had documented their involvement in the incident within a day of the incident. The use of force expert noted some concerns with the internal communications between management and the members involved following the incident; however, it was equally noted that, in the aftermath of the incident, policy had been drafted by the RCMP's North District to handle highly sensitive issues and that the policy would help prevent or mitigate similar concerns in the future. As such, I find that the actions taken by the RCMP reasonably address the concerns raised by the use of force expert with respect to internal communication.

I note that the youth himself was never interviewed as part of the external or public complaint investigations. The West Vancouver Police Department had presented a request, but it was denied by the Ministry of Children and Families due to concerns regarding the youth's well-being. In my view, given the availability and participation of other civilian witnesses, no concerns arise from the non-participation of the involved youth.

Findings:

  1. The actions taken by the RCMP in response to the incident were reasonable.
  2. I am satisfied that the drafting of a policy to handle highly sensitive issues is a reasonable response to the concerns raised over the internal communications following the incident.

Conclusion

Difficult circumstances restricted the scope of the intervention options available to the members that would enable them to take control of the quickly evolving situation without further endangering the safety of the youth, bystanders, or the members themselves. The use to the CEW was reasonable given the imminent risk of grievous bodily harm presented by the youth's behaviour; however, the age of the young subject prompted the public to critically examine the incident. It is important to note that age is but one variable to be assessed when considering the risk presented by a given situation. In this case, given the behaviour exhibited by the youth and the high degree of inherent risk, the members acted reasonably and in accordance with the training, statutory requirements and policies in place. While it is clear that the RCMP's national operational policy in respect of the CEW does not restrict the use of the intermediate device based on age of the subject, this is not the first public complaint that engaged this factor of concern.Footnote 21 I find that there exists an opportunity to add clarity and raise awareness in the policy about medically high-risk situations, which also serves to mitigate concerns about the use of the CEW in respect of children, as addressed by the relevant policy.

Having considered the complaint, I hereby submit my Interim Report in accordance with paragraph 45.42(3)(a) of the RCMP Act.

____________________________________
Ian McPhail, Q.C.
Interim Chair

Appendix A

Summary of Findings and Recommendations

Finding: All of the members involved complied with the training requirements.

Finding: The members' use of force was reasonable and consistent with the applicable legislation and RCMP policy.

Finding: It was reasonable for Constable Fitzpatrick not to issue a warning of the CEW deployment.

Finding: I am satisfied that the direction given by the RCMP to the Officer in Charge of the Prince George RCMP Detachment reasonably addresses the requirement to ensure that medical assistance is requested in medically high-risk situations, where possible.

Findings:

  1. The actions taken by the RCMP in response to the incident were reasonable.
  2. I am satisfied that the drafting of a policy to handle highly sensitive issues is a reasonable response to the concerns raised over the internal communications following the incident.

Recommendations: That the RCMP incorporate into its CEW policy the specific language found in the CEW manufacturer's warnings, including the following:

  1. Medically high-risk populations (namely, pregnant, elderly, or low body-mass index person or small child) may be at a higher risk of death or serious injury.
  2. The CEW should only be used on medically high-risk persons if the situation justifies an increased risk.
  3. Where the situation justifies the risk, whenever possible, avoid sensitive areas and target preferred target areas, given the increased risk of having the CEW-delivered discharge closer to the heart.

Appendix B

List of RCMP Members Involved

Staff Sergeant Perry Smith

Sergeant Todd Gray

Corporal Jayson Davidson

Constable Josh Grafton

Constable Kyle Sharpe

Constable Daniel MacIntosh

Constable Chad Fitzpatrick

Appendix C

Chair-Initiated Complaint
Subject: Use of Conducted Energy Weapon on 11-year-old Youth in
Prince George on April 7, 2011

As Interim Chair of the Commission for Public Complaints Against the RCMP, I am initiating a complaint into the conduct of those RCMP members involved in the deployment of a conducted energy weapon (CEW) in respect of an 11-year-old youth in Prince George, British Columbia, on April 7, 2011, and the adequacy of the actions taken by the RCMP in response to the incident.

The facts as presently known indicate that on April 7, 2011, in the late afternoon, RCMP members responded to an emergency call from a residence in Prince George where a 37-year-old male had been stabbed. The 11-year-old male suspect in the incident was located in a nearby property. A CEW was used on the youth when he exited that property, following which he was taken into custody and transported to hospital for assessment.

I am initiating this complaint with the full appreciation that the West Vancouver Police Department is conducting a criminal investigation into this incident at the request of the RCMP. It is not my intention to prejudice that investigation. However, given the ongoing expressions of public concern as they relate to this matter and to the use of CEWs in respect of children, I am satisfied that there are reasonable grounds to investigate the circumstances surrounding this incident as well as the handling thereof.

Accordingly, pursuant to subsection 45.37(1) of the RCMP Act, I am today initiating a complaint into the conduct of all RCMP members or other persons appointed or employed under the authority of the RCMP Act involved in this incident, as well as into matters of general practice applicable to situations involving the use of CEWs in respect of children, specifically:

  1. whether the RCMP members or other persons appointed or employed under the authority of the RCMP Act involved in the events surrounding the apprehension of the unidentified 11-year-old youth on April 7, 2011, complied with all appropriate training, policies, procedures, guidelines and statutory requirements relating to police use of force;
  2. whether the RCMP's national-, divisional- and detachment-level policies, procedures and guidelines relating to the use of CEWs are adequate; and
  3. whether the actions taken by the RCMP in response to the incident were taken in accordance with all applicable policies, procedures, guidelines and statutory requirements for the conduct of such an investigation and whether such policies, procedures and guidelines are adequate.

Appendix D: RCMP's Final Report

Your File - Votre reference
CPC 11-1194

Our File - Notre reference
E Div 11-3726

District Commander
North District -"E" Division 4020 5th Avenue
Prince George, BC V2M 7E7

Mr. Ian McPhail, Q. C. ,
Interim Chair
Commission for Public
Complaints Against the RCMP
Bag Service 1722, Station B
Ottawa, Ontario
KlP OB3

May 8, 2013

Dear Mr. McPhail:

This letter is in reference to your complaint lodged on April 14, 2011, in which you wrote to former "E" Division Commanding Officer, Assistant Commissioner Peter Hourihan, providing notice you were initiating a complaint regarding the RCMP's deployment of a Conducted Energy Weapon (CEW) on an 11-year-old boy in Prince George, British Columbia, on April 7, 2011.

Your specific concerns were:

  1. Whether the RCMP members or other persons appointed or employed under the authority of the RCMP Act involved in the events surrounding the apprehension of the unidentified 11-year-old boy on April 7, 2011, complied with all appropriate training, policies, procedures, guidelines and statutory requirements relating to police use of force.
  2. Whether the RCMP National, Divisional, and Detachment Level policies, procedures and guidelines, relating to the use of CEWs are adequate.
  3. Whether the actions taken by the RCMP in response to the incident were taken in accordance with all applicable policies, procedures, guidelines and statutory requirements for the conduct of such an investigation and whether such policies, procedures and guidelines are adequate.

A thorough investigation was conducted into this complaint. I have had au opportunity to review the investigator's report and can now comment on your concerns. In addressing these issues, I have relied, in large part, upon the findings of an investigation conducted by the West Vancouver Police Department. Contained within that report is a use of force report compiled by Joel A. Johnston of the Defensive Tactics Institute. Johnston is a Use of Force Subject Matter Expert.

A. Background Information

As mentioned, the following synopsis of the incident is derived from the investigative report forwarded by the West Vancouver Police Department and Joel Johnston's use of force report.

At approximately 5:30 p.m., on April 7, 2011, officers of the Prince George RCMP Detachment responded to a report of a stabbing at 10305 Giscome Road, the Taborview Group Home, in Prince George, B.C. The Taborview Group Home is located on an expansive rural property with a number of outbuildings, vehicles and open land surrounded by forest. At the time of this incident, much of the property was covered in deep snow. The report indicated that an eleven- year-old-boy (the "boy") had just stabbed a group home worker. It was later verified that the group home worker sustained a non-life threateuing puncture wound, approximately one inch deep, to his abdomen. The wound required stitches but no surgery. The call into Prince George Operational Communications Centre ("OCC") was made by an employee of the group home while he was en route to hospital with the victim. In addition to advising the OCC of the stabbing, he related that the boy was still believed to be at the residence along with the remaining group home staff.

At 5:33 p.m., the OCC called staff member Jeff Reid, who was on scene. Initially, Reid advised that the boy was still loose with the knife, and staff were coucerued he would run into the bush and disappear. At roughly the same time, a follow up broadcast was sent out to the responding RCMP officers from Sergeant Gray, via the OCC, directing Constable Fitzpatrick, a CEW qualified officer, atteud the scene. Reid also explaiued to the OCC that the boy had broken iuto a travel trailer on the property and acquired a number of knives. He continued to advise that the boy was a "high risk" youth and eventually confirmed that the boy had ban-icaded himself inside the residence.

Reid stated that the boy was prone to rages, and that this was a "very high risk situation." He warned the OCC that the boy could very likely "hide and leap out and attack with a knife". He was coucerned that, if police entered the house, they would be at risk because the boy might attack them. Reid recommended to the OCC operator that police use a CEW to control the boy.

At 5:38 p.m., the OCC advised the responding members that the complainant felt that "police were going to need to be physical with the boy in order to take him down." The OCC also advised members that the boy had barricaded himself the house and that the witnesses on scene believed that he "will hide, burst out and try to stab a member".

At approximately 5:45 p.m., Coustables Sharpe and Macintosh arrived at scene. About a minute later, Corporal Davidson an-ived from the detachment. These members were unfamiliar with the property, and no one recalled ever having had past dealings with the boy. They were also unaware of the boy's previous history with police. No PRIME checks were conducted by the members en route to the call or by the OCC staff. While awaiting police arrival, staff observed that the boy had opened a bottle of wine in the house and was drinking from a wine glass. He was also walking around the house, holding a knife.

Upon arrival, Constables Sharpe and Macintosh began obtaining information from the group home's staff who were on scene. They advised that the boy was a "high risk" youth, with multiple mental health issues. They also described him as having "superpowers" and "super strength" and told members they used a "safe room", where he was sometimes lodged when he went into rages such as this. The boy was required to have two staff work directly with him at all times, due to these outbursts. Restraining the boy was difficult, even using two adults to control him. One staff member had even fashioned "body armor" (a padded Carhartt snowmobile suit) in order to safely deal with him. They advised that the boy knew the property, had access to knives in the house, and suggested there was the potential for him to hide, possibly ambushing police, if they went inside. The members on scene were unsure of whether the boy had taken his medication that day, however, all of them knew that he was required to take medication (though not what type, or for what reason). Members were also aware the boy had hearing difficulties, as well as having an approximate mental capacity of a three year-old. The attending officers then briefed Corporal Davidson of what they had learned.

Constable Fitzpatrick arrived on scene at approximately 5:56 p.m. As mentioned, his attendance had been earlier requested by Sergeant Gray, specifically because he was equipped and trained with the CEW, and Sergeant Gray wanted a viable, less-than-lethal response option available. Constable Fitzpatrick was briefed by Constables Sharpe and Macintosh, reviewing the information they had already garnered. Constable Fitzpatrick also personally made similar observations of what was happening. An additional concern for the attending officers included the fact that there were three dogs on site (including a bulldog and a bull mastiff), and their whereabouts inside the house was not known. The size of the residence (estimated at 8000 square feet on multiple levels, including a garage and an indoor pool), also created logistical and tactical challenges. The boy apparently had an unlimited access to knives from the kitchen and whatever other real or improvised weapons that might have been inside the house. There were also numerous points of entry and egress. In addition, the boy began barricading and locking doors immediately upon gaining entry into the residence. It was not possible for the police to effectively maintain containment around all of this structure with the available resources.

When the boy appeared at the window above the garage, Constables Sharpe and Macintosh tried to communicate/negotiate with him. Communications were difficult because of the closed window. Eventually, the boy opened the window by using a knife to cut out the window screen. He positioned his upper torso out of this small window, causing concerns among the officers that he may fall and drop two stories to the ground below. During the entire time that the officers saw the boy through the upper floor window, he held a knife in his hand. He was also observed slashing his sweatshirt and running the knife blade over the palm of his hand. Later, he threw a wine bottle and wine glass out of the window, causing them to smash on the driveway.

The officers on scene, including Corporal Davidson, then discussed the possible intervention/response options available to them. Although they did not make a definitive decision as to which option would be employed, they felt that the use of the CEW would be the most reasonable option if the boy's behavior did not change and/or he remained at risk. At one point in time, the boy was observed at the window making the sign of a cross across his chest. Group home staff told the members at scene that this wa:s "a very bad sign''. In their experience, it was a clear indication that the situation was going to degenerate. Similar past behavior from the boy suggested that this would be the time that he would normally be placed in his "safe room'' by at least two care workers. The officers repeatedly tried to coax the boy out of the house. They also acted upon his request to obtain some personal effects. At one point, the boy indicated that he wanted to go home to see his morn. Eventually, the boy came down to the main level of the residence and appeared briefly on the front porch. At this time, Constable Macintosh observed him holding a knife in his left hand.

The boy then came out on the porch a second time and stuck a post-it note on the wall, advising the officers to; "read the note''. This time, Constable Sharpe saw him holding a knife in his left hand. Other officers also saw something in his hand, hut could not tell what it was. The boy went back inside the house, motioning through the window for police to read his note. Constable Sharpe told the boy they could not read the note, and that he needed to make a new note with larger print, or he needed to move the note closer to them so they could see it. Constable Fitzpatrick then moved into a position below the front porch, approximately eight feet from the door and out of view of the boy. Constable Fitzpatrick had an M26 TASER CEW in his hand, and was prepared to discharge it if the opportunity presented itself.

The boy came out of the house again and took a few steps toward the wall where his note was posted. At that moment Corporal Davidson shouted; "He's got something in his hand!" Constable Sharpe replied; "I can't see his left hand". Constable Sharpe recalled someone saying; "Knife!", however, a later canvass of the other officers who had been at scene revealed that no one remembered or admitted to making such an utterance. Constable Fitzpatrick then discharged the CEW from fairly close range. The probes impacted into the boy's hip and back shoulder area. The CEW cycled once, for five seconds and, as the boy became incapacitated (by falling to the ground), the other officers moved in immediately, gaining physical control by placing him in handcuffs. Constable Fitzpatrick subsequently removed the probes from the boy's back. No knife was ever located on or near the boy, however, a ball point pen was found near where he had fallen. The boy was immediately transported by police in a patrol vehicle to the hospital.

B. Nature of the Complaint

Issue #l Whether the RCMP members or other persons appointed or employed under the authority of the RCMP Act involved in the events surrounding the apprehension of the unidentified 11-year-old boy ou April 7, 2011 complied with all appropriate training, policies, procedures, guidelines and statutory requirements relating to police use of force; and

Issue #2 Whether the RCMP National, Divisional, and Detachment-Level policies, procedures and guidelines relating to the use of CEWs are adequate; and

Issue #3 Whether the actions taken by the RCMP in response to the incident were .taken in accordance with all applicable policies, procedures, guidelines and statutory requirements for the conduct of such an investigation and whether such policies, procedures and guidelines are adequate.

C. Findings of the Investigation

The review of this matter was conducted by Inspector Patrick Egan of the Fort St. John Detachment. In responding to the concerns of the CPC, he relied upon the investigative materials and the relevant policies he researched or were provided to him.

Issue # 1 Whether the RCMP members or other persons appointed or employed under the authority of the RCMP Act involved in the events surrounding the apprehension of the unidentified 11-year-old boy on April 7, 2011 complied with all appropriate training, policies, procedures, guidelines and statutory requirements relating to police use of force.

Overview:

The officers dispatched to this incident had no initial knowledge of the boy in question, nor had they any sense of his capabilities. Upon arrival at the scene, officers collected information from witnesses, which included his chronological and estimated mental age. Witnesses described the boy as a potentially dangerous individual, of considerable physical strength and known to be prone to violence. It was noted that normal protocols when house staff dealt with him was for them to use no less than two resource workers. Witnesses advised the boy was very familiar with the property and had access to knives in the house. Additional information from the staff suggested that the boy might hide and try to "ambush" police if and when they entered the premises.

The residence involved consisted of approximately eight thousand square feet of space on multiple levels, including a garage and indoor pool. The boy had access to an array of knives from the kitchen and other potential weapons. Numerous entry/egress points in the residence, coupled with the fact the property was situated in a tural area, provided the boy numerous escape options. If he had escaped the area, there was real danger to public safety. Given the winter conditions existing at the time, if the boy did elude apprehension by escaping iuto the tural surroundings, there was also a possibility that he would succumb to the elements.

The boy had just stabbed one of his care givers, and the attending officers were facing a situation with someone who was demonstrably capable of causing someone grievous bodily harm, or death. The officers learned that the boy had opened a bottle of wine and was drinking from a wine glass. At one point, the boy was observed pacing around the house with a knife in hand and was later seen, through an upper floor window, to be holding a knife in his hand. The boy was also observed slashing his sweatshirt and tunning the knife blade over the palm of his hand. He then threw a wine bottle and a wine glass out of the window, smashing them onto the driveway below. The officers also saw the boy gesture at them (by raising his middle finger) and making the sign of the cross on his chest. It was apparent to the house staff and attending officers that the boy's abhmrnnt behavior was escalating, and that any delay in his apprehension would increase the likelihood that he might escape and/or harm himself or others.

The boy's mental capacity and chronological age placed him in a category where he was not "criminally responsible" for his actions. Nevertheless, the officers in attendance had a dnty to ensure the peace and safety of the general public. As events unfolded, the police did not have an option to disengage. The police did consider their tactical options with a view to optimizing their goal of a successful resolution that did not endanger themselves, or the public. Ultimately, as events unfold dynamically, police response options also change to meet the challenges presented.

The initial method deployed by the officers at scene was to contain and try to negotiate with the boy. Initial negotiations with him had the officers arranging to have some of his belongings brought to the scene. However, as events moved forward, a second tactic was utilized; namely, the enticement of the suspect out of the residence.

Corporal Grafton of the Police Dog Section was also assigned to assist with the containment of the scene. ' The existing points of entry/exit in the residence placed a considerable drain on the officers involved in the containment. Although the police dog and handler were on scene, a decision was made not to engage this resource in the apprehension of the boy. Instead, the police dog was held in reserve, assigned the role of tracking the boy in the event that he was successful in leaving the area.

Sergeant Gray, the senior member commanding the situation, opted to have a "non-lethal" use force option ready. Accordingly, a decision was made to summon Constable Fitzpatrick, a trained and equipped CEW operatot. When Constable Fitzpatrick arrived, he was briefed by Constables Sharpe and Macintosh. The officers then determined that the CEW was the best option to take the boy into custody, given his demonstrated violent behavior, coupled with the fact that he had been seen in possession a knife. It was apparent to the attending officers that the boy was very agitated and they feared that he might attempt to inflict harm to himself and/or others, including the responding police officers.

When the boy initially exited the residence and posted a note on the side of the house, officers were situated near the porch of the house, including Constable Fitzpatrick, who was concealed from view. At this point in time, Constable Fitzpatrick was situated at 18 - 20 feet from the boy, out of the maximum range for the CEW. The optimum range for the CEW is 7-15 feet.

After posting the note, the boy requested the officers read the note and weut back upstairs. This was recognized by the attending officers as an opportunity to use a tactic to entice the boy from the residence. The resultant strategy was to tell the boy that the note was not legible, and if he emerged to modify or post a second note, they would deploy the CEW. As a result, Constable Fitzpatrick re-positioned himself below the front porch, approximately 8 feet from the door, but out of sight of anyone emerging from the residence.

Constable Sharpe then told the boy they could not read the note, and requested that he reposition it. When the boy reappeared on the porch, several of the officers observed that he had something in his hand, and shouted out a warning to one another. Initially, Constable Fitzpatrick did uot see the boy, however, when he suddenly appeared in view, Constable Fitzpatrick was afforded a clear target and immediately deployed the CEW. Given the immediacy of the situation, coupled with the boy's prior behavior, Constable Fitzpatrick did not tender the standard CEW warning. One cycle of the CEW (5 seconds) was activated, which immediately incapacitated the boy. The officers then were able to quickly and safely approach the boy and restrain him, resolving the situation. After his apprehension at 1823 hours, he was transported to hospital by officers in a police vehicle. At the time of this incident policy of the day was followed however a best practice would have been to have the B.C. Ambulance ervice (BCAS) on standby.

Training:

RCMP officers are mandated to complete an on-line Incident Management Intervention Model (IMIM) course prior to participating in classroom work that reviews the principles of the IMIM. These principles include: awareness of officer perception; tactical considerations; situational factors; subject behavior; risk factors; intervention options; and legal authorities. In the Province of British Columbia, this training regime includes an annual 1/2 day re-certification course. Every three years, officers must attend the Pacific Region Training Center at Chilliwack, B.C. for five full days of Operational Skills Training (OST). The five day course includes extensive IMIM scenario-based and First Aid training.

At the time of this incident all officers involved were compliant with respect to the IMIM and First Aid training.

RCMP training in the use of the CEW at the time of this incident required officers to complete a two day "user" course. This two day course included classroom instruction, practice sessions with the CEW, and a half day (4 hours) of scenario-based training. Annual re-certification is mandatory.

The current training standard has been enhanced to include an on-line CEW course, an on-line Critical Incident De-Escalation Course, a half day classroom course in Critical Incident De-Escalation Course, and Automated External Defibrillator traiuing course.

At the time of this incident, the CEW equipped member, Constable Fitzpatrick, was compliant with all training requirements in place at the time of this incident.

Policy:

I have addressed the policy requirements with respect to use of force and the CEW in considerable detail in the second part of this letter. For the purpose of addressing the issue of policy compliance, two issues have been identified for review.

The first issue concerns CEW deployment aftercare. Although the eleven year old boy suffered no physical repercussions from the CEW discharge, it would have been preferable to have an ambulance on "stand by" status at the scene. National RCMP Operations Manual 17.7.3.1.8. states that:

Acutely agitated or delirious persons may be at a higher risk of death. Whenever possible, when responding to reports of a11 individual who is violent or in an acutely agitated or delirious state, request the assistance of emergency medical services. If possible, bring medical assistance to the sce11e.

In this instance, the ambulance was not requested for transport, and the boy was taken to the hospital in a police vehicle for examination.

The second issue is that Constable Fitzpatrick did not render the CEW deployment warning to the boy before the discharge. National RCMP Operations Manual 17.7.3.1.4. directs:

Where tactically feasible, members will issue a verbal waming so the subject is aware that a CEW is about to be deployed.

In these circumstances, the element of surprise was key to a safe and immediate immobilization of the boy. The action taken resulted in no injury to him or to anyone else at scene. If Constable Fitzpatrick had given the CEW warning, the boy might have retreated into the house, affording him another opportunity to engage in violent behavior and/or commit harm to himself or others.

The Braidwood Inquiry Guidelines also speak to this issue:

A verbal waming is to be given prior to CEW discharge, unless such a warning would place any individual atfurther risk - this is in keeping with CID Communications.

The Braidwood Inquiry Report was released after this incident. Itis important to recognize that actions of the officers, for these particular circumstances, met the threshold of the Braidwood recommendations, with the exception of them ensuring that medical assistance was immediately available at scene.

IMIM and CEW policy does not specifically address the issues of arresting persons under the age of twelve. The apprehension of a teenager or adult in the same scenario would likely not have garnered the same attention or concern. As currently stated, the principals of both IMIM policy and the use of the CEW are applicable to persons of any age.

Statutory considerations:

The Criminal Code authorizes the police to use force in the prevention of death or grievous bodily harm.

  • 25. (1) Everyone who is required or authorized by law to do anything in the administration or enforcement of the law
    • (a) as a private person,
    • (b) as a peace officer or public officer,
    • (c) in aid of a peace officer or public officer, or
    • (d) by vi11ue of his office,
  • is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as muchforce as is necessary for that purpose.
  • (3) Subject to subsections (4) and (5), a person is not justified for the pw poses of subsection ( I) in using force that is intended or is likely to cause death or grievous bodily harm unless the person believes on reasonable grounds that it is necessmy for the self-preservation of the person or the preservation of any one under that person's protection from death or grievous bodily harm.

In this situation, the officers were dealing with a subject who had just committed an aggravated assault with a weapon. This subject was barricaded inside a residence armed with one or more shaip-edged weapons. The officers in attendance had a duty to take action to prevent the subject from causing harm to himself, or others and were authorized to do so in law.

There were a number of tactical options available to the responding police officers:

  1. Do nothing - this option had a potential to compromise public safety.
  2. Immediately enter the residence and attempt to apprehend the eleven year old boy - this option may have provided an expedient resolution; however, it could also have resulted in grievous bodily harm or death to the boy and/or the police officers.
  3. Contain and Negotiate - this is the most commonly employed tactic when dealing with armed/barricaded individuals. The scene is contained and negotiations are conducted until the individual exits the barricade on his own volition and surrenders peacefully. This is the best case scenario. The drawback to this tactic is it allows the suspect a considerable amount of time for potential self harm.
  4. Entice the suspect from the barricade and utilize non-lethal force to affect an arrest - this option can be used in a situation such as this incident where the subject has the potential to harm himself. Note: The officers in attendance chose this option, after first containing the boy and then attempting negotiation. This was a planned and deliberate tactical intervention.
  5. Deploy distraction tactics, i.e. tear gas, to force the subject to leave the residence - this option has safety implications in that it conld have cansed the boy to potentially panic. In such a state of mind, the boy could have reacted unfavorably with possible dire consequences.

None of the above noted strategies are infallible, and all tactical options have the inherent risk of failnre, as unforeseen circumstances may occur. The option chosen was the result of the officers assessing the totality of information available to them at the time, and their actions resulted in a successful intervention.

In hindsight, it is recognized that the strategy to "contain and negotiate" further than the 40 minutes might have resulted in a successful intervention. However, if the officers had elected to contain and negotiate, it was a possibility that the boy might have engaged iu self harm. Given the totality of the situation, the option chosen by the attending officers had a greater chance of success than for them to continue to wait and access. However if the officers had elected to contain and negotiate for a protracted period of time, there was a real possibility that the boy might have inflicted harm to himself. This would have required a dynamic intervention by police which would have escalated the risk to all quite considerably.

Determination:

Based on all the information available to me, I have determined that the RCMP officers or other persons appointed or employed under the authority of the RCMP Act involved in the events surrounding the apprehension of the suspect on April 7, 2011, complied with all appropriate training, policies, procedures, guidelines and statutory requirements relating to police use of force.

Issue #2 Whether the RCMP National, Divisional, and Detachment-Level policies, procedures and guidelines relating to the use of CEWs are adequate.

Policies, procedures and guidelines relating to the use of CEWs are contained in National level directives and RCMP Divisions and Detachments are guided by same. In assessing the adequacy of these directives, it is necessary to clarify the broader concepts taught to RCMP officers through the Incident Management Intervention Model (IMIM).

The main objective of any occurrence response and intervention is the safety of peace officers, other law­ enforcement officers and the public. Many occmrences can be resolved through dialogue, but occasionally, intervention by means of force may be necessary.

In his use of Force Report Joel A. Johnson explains the concept of the IMIM:

"The Incident Management Intervention M odel is a learning aid and visual model that assists an officer in picturing an event and in explaining why a particular force response option( s) or intervention option( s) were utilized in dealing with a given situation. It is used for training RCM P officers. The IMIM is not in of itself RCM P policy. Nor is it law - it is not to be considered a "justification model". Instead, the IMIM describes how a trained RCM P officer should respond to any given situation.

The police in Canada are responsible for maintaining public order and safety; this authority is legislated by the Parliament of Canada and the respective provincial legislatures. Law without an enforcement mechanism has little meaning. The police are required to use a variety of response options in their law enforcement role. When officers of the public find themselves in circumstances that are beyond their control, they normally call the police as the public agency to restore control.

All police officers are expected to explain the strategies, tactics and response options they choose to manage a given incident. Such an explanation must account for the totality of the situation, including the officer' s perception of events, assessment of evolving situational factors, and the behavior of the subject( s) that they are dealing with. All of these form the officer' s risk assessment. This explanation, referred to as legal articulation, is the process by which an officer can clearly, concisely, and effectively explain the events that occurred before, during, and after the police response. Critical to this explanation is the fact that it will be based on the officer's individual perception during the course of the incident, and how those perceptions are interpreted and acted upon by the officer. An officer will not necessarily be judged by what they personall y believed, instead their response will be measured against what a reasonable, trained, prudent police officer would dofaced with a similar set of circumstances.

The IMIM is theframework by which RCMP officers assess and manage risk through reasonable and justifiable response to the situation that they face. The IMIM, like the National Use of Force Framework is not a "use of force continuum". It does not connote a linear path of force response. Rathe1; it assists an officer in choosing an appropriate response option, based upon the subject's behavior in the context of the totality of the situation. It endorses a continuous risk assessment and is centered around the RCM P problem solving model called "CAPRA" - an acronym for: Clients I Acquire & Analyze /Partnerships I Response /Assess). The IMIM also assists RCM P officers in identifying the subject' s behavior and in selecting an appropriate response option to effectively control the situation.

The IMIM is built from the "hub" - the actual situation - outward. The circular graphic has been specifically designed to reflect the rapidly evolving and dynamic nature of policing. The IM IM does not suggest that an officer should move through a stepped progression of response options, as a continuum or linear pathway would suggest. Instead the officer chooses the mostappropriate response option based upon the totality of the situation. It is not an "if thisbehavior" then "that response" model. A number of responses may be appropriate and justified in a given situation based upon the totality of circumstances. There is no one "right answer" for every situation."

Joel Johnson then outlines the options available to RCMP officers in situations requiring a use of force:

Officer Presence
While not strictly an inteivention option, the simple physical presence of an officer can affect both the subject and the situation. Visible signs of authority such as uniforms and marked police cars can affect a subject' s behavior.

Communication
An officer can use verbal and non-verbal communication to control, influence and/or resolve the situation.

Physical Control
The IMIM identifies two levels of physical control: soft and hard. In general, physical control means any physical technique used to control the subject that does not involve the use of a weapon.

Soft techniques are control oriented and have a lower probability of causing injwy. They may include escorting and/or restraining techniques, joint locks and non-resistant handcuffing.

Hard techniques are intended to stop a subject' s behaviour or to allow application of a control technique and have a higher probabilit y of causing injury. They may include empty hand strikes such aspunches and kicks.

Intermediate Weapons
This inte1vention option involves the use of less-lethal weaponry. Less-lethal weapons are those whose primary use is not intended to cause serious injiuy or death. Impact weapons, aerosols and conducted energy weapons ( CEWs) fall within this heading.

Lethal Force
This inte1vention option primarily involves the use of conventional police firearms (duty pistol, shotgun, rifle, patrol rifle etc). The use of thesefirearms is intended to stop an imminent threat of death or serious bodily harm. They are reasonably likely to cause serious bodily injwy or death through ballisticforce via a lethal projectile.

The options listed above are intervention options that have been approved for use, however when none of these inte1vention options is available or appropriate, officers may use any reasonable weapon or option of opportunity to defend themselves or members of the public.

Tactical Repositioning
The primary duty of a peace officer is to preserve and protect life. However, when a situation escalates dangerously, or when the consequences of continued police intervention seriously increase danger to anyone, the option to tactically reposition may be considered appropriate.

It is also recognized that due to insufficient time and distance or the nature of the situation, the option to disengage may be precluded. If the officer determines that the option to disengage is tactically appropriate, the officer may consider disengagement in order to contain and consider other options, such as seek alternative cover, wait for back-up, specialty units, etc.

It is important to note that regardless of the subject's demonstrated behavior at the time of the police force response or intervention, the overall risk assessment would require that the officer' s preparation and/or response be consistent with the risk assessment on the whole. For example, a situation where a subject is believed to be armed and dangerous based upon reasonable grounds, is an indication to responding officers that they should conduct a high risk arrest and that they would likely point theirfirearms at a subject. Even if the subject "cooperates", the totality of the situation, having regard for all circumstances reflects a high risk situation that must be
responded to accordingly.

Assessment of risk and subsequent intervention response cannot be based simply upon a snapshotof subject behavior, but must take into account all of the available information.

RCMP policy ensures that officers are trained in the Th1IM. National Operations Manual 17.1.4 refers:

  1. The IMIM will be taught to RCMP cadets at Depot Division.
  2. Persons who have RCMP peace officer status, including lateral entry members, community safety officers, auxiliary constables, will be taught the IMIM as part of their initial training.
  3. Regular members and persons who have RCMP peace officer status will be re-certified annually on the IMIM .

The CEW is considered an intermediate weapon within the framework of the IMIM.

National RCM P Operations Manual 17.7. (Conducted Energ y Weapon (CEW ) (only sections deemed relevant are quoted )

3.1.1. The CEW must only be used in accordance with CEW training, the principles of the Incident Management/Intervention Model (IM/IM) and when a subject is causing bodily harm, or the member believes on reasonable ground s, that the subject will imminently cause bodily harm as determined by the member' s assessment of the totality of the circumstances.

NOTES:

  • In accordance with sec. ;;.., CC, bodily harm is defined as any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature.
  • Members' actions must be reasonable and the force used must be necessary in the circumstances. Members must fully and accurately report and articulate their actions. Supervisors/managers will ensure all reporting requirements are complied with and appropriately evaluate all interventions to ensure compliance with RCMP directives.

3.1.2. All members must recognize that any use of force entails risk.

3. 1. 3. Where tactically feasible, members will use de-escalation techniques and/or other crisis intervention techniques before using a CEW.

3. 1. 4. Where tactically feasible, members will issue a verbal warning so the subject is aware that a CEW is about to be deployed.

3. 1. 5. Where tactically feasible, members should avoid targeting the chest area or any areas higher than the bottom of a subject's rib cage.

3. 1. 6. Multiple deployment or continuous cycling of the CEW may be hazardous to a subject. Unless situational factors dictate otherwise, members must not cycle the CEW for more than 5 seconds on a subject and will avoid multiple deployments.

3. 1. 7. Members should make every effort to take control of the subject as soon as possible following the deployment of a CEW, and if possible during the CEW deployment.

NOTE: The CEW is not intended as a restraint device.

3. 1. 8. Acutely agitated or delirious persons may be at a higher risk of death. Whenever possible, when responding to reports of an individual who is violent or in an acutely agitated or delirious state, request the assistance of emergency medical services. If possible, bring medical assistance to the scene.

Conducted Energy Weapon -Deployment Aftercare:

  • 5.1. After deploying a CEW, advise the subject that he/she has been subjected to a CEW deployment, and that the effects are expected to be short term.
  • 5.2. Whenever possible, in medically high risk situations, request medical assistance before using the CEW. If medical assistance is not requested or a CEW deployment is necessary before the arrival of medical assistance, obtain medical assistance as soon as practicable.
  • 5.3. Members must ensure that the subject receive medical assistance if the subject has any apparent medical or physical injiuy or affliction, the subject is in distress, or the subject requests medical assistance. See ch. 19.2. for policy related to assessing responsiveness/medical assistance.
  • 5.4. A member with current first aid certification may remove the probes following the deployment of a CEW in probe mode, unless a probe is lodged in a sensitive part of the body, such as the eye or the groin, or the subject's condition warrants medical attention.
  • 5. 5. Members will remove the probes from a subject in a manner that least inteiferes with the privacy and dignity of that subject, while providing for the safety of the member and the subject.
  • 5.6. If a medical or physical injury or affliction is claimed or observed, members will do the following:
    • 5.6.1. Make note of any injwy or affliction they observe, and any injury or affliction described by the subject.
    • 5.6.2. Photograph the injmy or afflicted area as observed, or the area of the injmy or affliciion as described by the subject and secure as evidence.
    • 5.6.3. lf feasible, request a statement relative to any injwy or afflictionfrom the subject.
    • 5.6.4. Collect the expended cartridge and probes as taught in CEW training, and secure them as an exhibit for a minimum of 90 days. Cartridges that are not required for criminal, civil, or code of conduct investigations can be disposed of after 90 days.
    • 5.6.5. Wherepossible, dispose the probes in a sharps container.

Where a CEW has been utilized, RCMP policy reqmres that the member report the incident to a supervisor.

Reporiing and Accountability

  • 6.1.3. Complete all information in the CEW sign out logform 6333.
  • 6.1.4. Record the serial number of the CEW in your notebook.
  • 6.1.5. As soon as practicable, each time the CEW is used, notify your supervisor.
  • 6.1.6. Record on the investigative file any medical or physical injwy or affliction.

There were several key areas of the Braidwood report that have shaped the preceding RCMP CEW policy:

Braidwood recommendations:

"Seriousness of the matter threshold

  • 1. I recommend that officers of provincially regulated law e1iforcement agencies be authorized to deploy a conducted energy weapon only in relation to enforcement of afederal criminal law.

Subject behavior threshold

  • 2. I recommend that officers of provincially regulated law e1iforcement agencies be prohibited from deploying a conducted energy weapon unless the subject' s behavior meets one of the following thresholds:
    • the subject is causing bodily harm; or
    • the officer is satisfied, on reasonable grounds, that the subject's behavior will imminently cause bodily harm.
  • 3. I recommend that, even if the threshold set out in Recommendation 2 is met, an officer be prohibited from deploying a conducted energy weapon unless the officer is sati;fied, on reasonable grounds, that:
    • no lesser force option has been, or will be, effective in eliminating the risk of bodily harm; and,
    • de-escalation and/or crisis intervention techniques have not been or will not be effective in eliminating the risk of bodily harm.
  • 5. I recommend that officers of provincially regulated law enforcement agencies, when dealing with emotionally disturbed people, be required to use de-escalation and/or crisis intervention techniques before deploying a conducted energy weapon, unless they are satisfied, on reasonable grounds, that such techniques will not be effective in eliminating the risk of bodily harm.

Subject self-harm

  • 6. I recommend that officers of provincially regulated law e1iforcement agencies be prohibited from deploying a conducted energy weapon in the case of subject self harm unless:
    • the subject is causing bodily harm to himself or herself; or
    • the officer is satisfied, on reasonable grounds, that the subject's behavior will imminently cause bodily harm to himself or herself.

Requesting paramedic assistance

  • 8. I recommend thatparamedic assistance be requested in every medically high risk situation, preferably before deployment of a conducted energy weapon 01; if that is notfeasible, then as soon as practicable thereafter. Medically high-risk situations include, but are not limited to:
    • deploy111ent in probe 111ode across the subject's chest;
    • deployment inprobe mode for longer thanfive seconds;
    • deploy111ent in any mode against:
      • an emotionally disturbed person;
      • an elderly person;
      • a person who the officer has reason to believe ispregnant; or
      • a person who the officer has reason to believe has a medical condition that may be worsened because of the deployment ( e.g., heart disease, implanted pacemaker or defibrillator, etc.). "

RCMP operational policy is in a continual state of development and is modified in response to a myriad of factors including, but uot limited to case law, coroner inquests, and commissions of inquiry. The Braidwood inquiry has had a profound impact on RCMP CEW policy, and continues to shape and influence the usage of the CEW by RCMP officers.

Prince George Detachment Protocol:

As a result of this incident, a protocol has been developed by the OIC Prince George Detachment in partnership with the group home. It contains the following points:

Police will be contacted immediately if the eleven year old boy is acting in a way to cause harm to himself or group home staff;

Police will attend to the group home and access the situation if the eleven year old boy is in a highly agitated state and is unable to be controlled by staff. Staff will have atte111pted to utilize a teddy bear hold (similar to a bear hug) to place the eleven year old boy into the de-escalation room prior to police being called;

Police will also consider taking the eleven year old boy to the hospital to be assessed by a psychologist if an incident such as this occurs;

Police will be contacted and will attend to incidents where criminal charges are requested;

Police will be contacted if the eleven year old boy goes AWOL and will be updated as to his location or return to the group home, attendance may not be necessary. The group home has created an AWOL protocol.

Determination:

Based on all the information available to me, I have determined that the current RCMP National, Divisional, and Detachment-Level policies, procedures and guidelines relating to the use of CEWs were adequate.

I will point out that in this particular case, the B.C. Ambulance were asked to be on "standby" but they were not dispatched to the scene. With benefit of hindsight, I believe that the B.C. Ambulance should have been called to the area and placed in a position where they could respond immediately if emergent care was required. For future reference, I have directed the OIC Prince George Detachment to ensure this expectation and national policy requirement is brought to the attention of all members under his command, including those involved in this incident.

Issue #3 Whether the actions taken by the RCMP in response to the incident were taken in accordance with all applicable policies, procedures, guidelines and statutory requirements for the conduct of such an investigation and whether such policies, procedures and guidelines are adequate.

The criminal investigation into the actions of the eleven-year-old boy was completed by the Prince George Detachment's General fuvestigation Section. Charges were not applicable as the boy was not old enough to be processed under the Youth Criminal Justice Act, notwithstanding the fact that criminal acts had been committed.

With respect to the response taken by the RCMP officers (regarding their action of deploying the CEW), a number of processes were engaged that were in keeping with all applicable policies, procedures, guidelines and statutory requirements that govern their actions/behaviour.

At the time of this incident, there was no civilian oversight investigative body in the Province of British Colnmbia. The RCMP Operational Manual Chapter 54.1 (OM 54.1) states in part:

Independent External Investigation

  • 3.1. Independent external investigation means an investigation for which the RCMP would normally have investigative responsibility but, pursuant to sec.2.3., the RCM P has requested an external law enforcement agency or a federally, provincially or territorially established investigative agency to conduct, and includes both the pre- and post-charge phases of such an investigation. 1
    • 3.1.1. An investigating agency undertaking an investigation pursuant to this policy must have no reporting obligations to the RCMP.
  • 3.2. To initiate an independent external investigation, the Commanding Officer/delegate will make a written request to an appropriate investigative agency either directly or pursuant to applicable established protocols.
  • 3.3. The Commanding Office1!delegate will request confirmation from the investigating agency of its acceptance to undertake the investigation and will also request the identity of the lead investigator.
  • 3.4. Upon receipt of the investigating agency' s acceptance and the appointment of a lead investigator, the Commanding Officer/delegate will appoint a designated contact member within the RCM P to communicate with the investigating agency.

An independent external investigation was requested by then Chief Superintendent Wayne Rideout, the Deputy Criminal Operations Officer (Contract), RCMP "E" Division. As a result, the West Vancouver Police Department (WVPD) was tasked with conducting this investigation which included a review by a use of Force Expert.

OM 54.1 also states:

  • 3. 5. In order to preserve the independence of the investigation subsequent to the initial request for assistance and acceptance, any communication between the investigating agency and the RCM P division requesting the investigation (other than that which is required as part of the investigational process) will be restricted to the designated contact member and lead investigator.
  • 3.6. The investigating agency will:
    • 3.6.1. be free to engage or seek legal advice from Crown Counsel in a manner that is consistent with the practices of thejurisdiction,
    • 3.6.2. be free to initiate or recommend charges depending on the process in place in the jurisdiction and the available evidence,
    • 3.6.3. liaise with Crown Counsel as necessmy so as to inform their decision toprosecute, and
    • 3.6.4. provide an investigative report to the Commanding Officer delegate.

1.2.3. Where no such regime has been established, the RCMP will request an external law enforcement agency or other duly authorized investigative agency to conduct an investigation (independent external investigation) that the RCMP would otherwise conduct, wherever:

2.3.1. there is a serious injury or death of an individual that involves an RCMP employee, or

2.3.2. where it appears that an employee of the RCMP may have contravened a provision of the Criminal Code or other enactment and the matter is of a serious or sensitive nature.

Duriug the course of that investigation Inspector Brendan Fitzpatrick, of the "E" Division Major Crimes Section in Vancouver, was the liaison between the RCMP and investigators from the WVPD. As such, the management of both Prince George Detachment and the North District office were without influence on the conduct of this investigation.

Due to the fact that an Independent police agency (WVPD) was engaged, there was no need for an independent observer on this file.

To ensure independence, the Chair Initiated CPC complaint was not investigated by the Prince George Detach ment; it was assigned to Inspector Egan of the Fort St. John Detachment. In addition, an Independent Officer Review was completed by Inspector Fast of the Vancouver Island District.

Determination:

Based on all the information available to me, I have determined that the actions taken by the RCMP in response to the incident were taken in accordance with all applicable policies, procedures, guidelines and statutory requirements for the conduct of such an investigation and that the policies, procedures and guidelines are adequate.

Comments:

The fact that an eleven-year-old suspect was involved in the discharge of a CEW has generated considerable media and public interest. Quick intervention by the officers involved resulted in no injury or the death of this boy. The officers acquitted themselves professionally, throughout their initial attendance/actions at scene and during its aftermath. These officers are to be commended for their decisive action, which I feel resulted in a successful conclusion to a very difficult and dangerous incident.

The British Columbia Child Advocate has also concluded her review of this incident and made no criticism of the RCMP's response and actions in this case.

Conclusion:

Pursuant to Section 45 .4 of the RCMP Act, I am notifying you that the investigation into this complaint has now been concluded.

Yours truly,

R.N.C. (Rod) Booth, Chief Superintendent

North District Comander
"E" Division

Appendix E: Canada Criminal Code Provisions

25. (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law

(a) as a private person,
(b) as a peace officer or public officer,
(c) in aid of a peace officer or public officer, or
(d) by virtue of his office,

is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.

27. Every one is justified in using as much force as is reasonably necessary

(a) to prevent the commission of an offence
(i) for which, if it were committed, the person who committed it might be arrested without warrant, and
(ii) that would be likely to cause immediate and serious injury to the person or property of anyone; or

(b) to prevent anything being done that, on reasonable grounds, he believes would, if it were done, be an offence mentioned in paragraph (a).

Appendix F: Incident Management/Intervention Model Graphical Description

Incident Management/Intervention Model Graphical Description

(Current as of May 8, 2009)

The Graphic - Description

The centre of the graphic depicts an officer. This officer uses the CAPRA problem solving model to assist in responding to an incident. The situational factors are a key element within the problem solving process

The situation is recognized as a constantly evolving event, represented by circular arrows, which requires continual risk assessment and evaluation by the officer(s) involved. The process of continuous risk assessment also helps to explain how a behaviour (and intervention option) can change from cooperative to assaultive (or from communication to lethal force) in a split second without passing through any other behaviour or intervention options.

The area adjacent to the centre circle contains the various subject behaviour categories including cooperative, passive resistant, active resistant, assaultive, and grievous bodily harm or death.

Perception and tactical considerations are interrelated and are therefore contained in the same ring (officer presence) on the model. Factors that the officer brings to the situation, that are unique to the individual officer interact with both situational factors and behaviour categories to determine how an officer may perceive or assess the situation. Further, the officer’s perception of a situation may affect his/her assessment and, in turn his/her tactical considerations.

The outer ring of the graphic represents the officer’s intervention options. These options range from officer presence to communication skills, physical control techniques, intermediate weapons, lethal force, and weapons of opportunity.

The outermost ring, tactical repositioning, represents the possibility that the officer may change or alter his or her position in an effort to gain a tactical advantage. This may occur at any point during the incident.

Though officer presence, communication, and tactical repositioning are not physical intervention options, they are included to illustrate the range of intervention options that may be used to control and influence subject behaviour.

http://www.rcmp-grc.gc.ca/
Incident Management/Intervention Model

Appendix G: Categories of Resistance of IndividualsFootnote 22

Co-operative

The subject responds appropriately to the officer's presence, communication and control.

Passive Resistant

The subject refuses, with little or no physical action, to cooperate with the officer's lawful direction. This can assume the form of a verbal refusal or consciously contrived physical inactivity. For example, some subjects will go limp and become dead weight.

Active Resistant

The subject uses non-assaultive physical action to resist, or while resisting an officer's lawful direction. Examples would include pulling away to prevent or escape control, or overt movements such as walking away from an officer. Running away is another example of active resistance.

Assaultive

The subject attempts to apply, or applies force to any person; attempts or threatens by an act or gesture, to apply force to another person, if he/she has, or causes that other person to believe upon reasonable grounds that he/she has the present ability to effect his/her purpose. Examples include kicking and punching, but may also include aggressive body language that signals the intent to assault.

Grievous Bodily Harm or Death

The subject exhibits actions that the officer reasonably believes are intended to, or likely to cause grievous bodily harm or death to any person. Examples include assaults with a knife, stick, or firearm, or actions that would result in serious injury to an officer or member of the public.

Appendix H: TASER International, Inc., "TASER Handheld CEW Warnings, Instructions, and Information: Law Enforcement", March 1, 2013

To reduce the risk of injury:

1. Use preferred target areas. The preferred target areas (blue) are below the neck area for back shots and the lower center mass (below chest) for front shots. The preferred target areas increase dart-to-heart distance and reduce cardiac risks. Back shots are preferable to front shots when practicable.

2. Avoid sensitive areas. When practicable, avoid intentionally targeting the CEW on sensitive areas of the body such as the face, eyes, head, throat, chest area (area of the heart), breast, groin, genitals, or known pre-existing injury areas.

Muscle Contraction or Strain-Related Injury. CEWs in probe-deployment mode can cause muscle contractions that may result in injury, including bone fractures.

Higher Risk Populations. CEW use on a pregnant, infirm, elderly, or low body-mass index person or on a small child could increase the risk of death or serious injury. As with any force option, CEW use has not been scientifically tested on these populations. Use a CEW on such persons only if the situation justifies an increased risk.

Cardiac capture may be more likely in children and thin adults because the heart is usually closer to the CEW-delivered discharge (the dart-to-heart distance).

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