RCMP PUBLIC COMPLAINTS COMMISSION’S HIGH RIVER REPORT A LESSON FOR POLICE & COMMUNITIES – HOW NOT TO ACT IN AN EMERGENCY
On February 12, 2015, the Civilian Review and Complaints Commission for the RCMP released their long-awaited report of their investigation of the RCMP’s actions during and following the emergency flooding in the Town of High River, Alberta between June 20, 2013 to July 13, 2013. The Commission’s investigation examined the RCMP’s forced entries of “more than 754 homes”, their unwarranted search of 4,666 homes (most on at least two occasions), damage complaints filed by more than 1,900 home owners, the RCMP’s seizure of more than 600 firearms and the seizure and destruction of approximately 7,500 pounds (between 400,000 and 450,000 rounds) of ammunition.
After reading the report, it is now clear to me why the Commission changed their name from the Commission for Public Complaints AGAINST the RCMP to the Complaints Commission FOR the RCMP. The report starts with such lofty aims and ambitions by quoting British statesman William Pitt from his speech to the House of Commons in 1763: “The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail, its roof may shake; the wind may blow through it; the storms may enter, the rain may enter,—but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenement.” Sadly, the report then goes on to document how the Queen’s forces, the Royal Canadian Mounted Police, did cross the thresholds of 4,666 High River homes, by kicking in doors, searching homes and seizing private property without warrant. The report tries to justify the RCMP’s actions in High River, overlooking the Alberta Emergency Management Act’srequirements for the delegation of authority for unwarranted searches of buildings, omitting or distorting important details, contradicting past public statements and documents; and, holding no one to account for obvious egregious violations of the Charter of Rights and Freedoms and offences under Criminal Code and the RCMP Act.
I have been following the High River Gun Grab since it first became public on June 28, 2015. In the course of my investigation, I have filed 42 Federal Access to Information Act (ATIP) requests with the RCMP, the Department of National Defence, the Department of Public Safety and the Privy Council Office. I have also filed 7 Freedom of Information Program (FOIP) requests with the Alberta Ministry of Municipal Affairs, Ministry of Justice and Solicitor General and the Town of High River. Many of these requests are now being investigated by the respective Information Commissioners for incomplete responses and missing information. Having sifted through thousands of pages of documents provided by these departments and ministries, I wrote eight detailed letters to the Chairman of Commission for Public Complaints Against the RCMP, letters to federal and provincial ministers and several columns questioning what happened in High River during and following the flood of June 2013. This documentation is available at these three URLs:
I. Complaints Commission’s terms of reference too narrow to uncover the whole truth
Unfortunately, all levels of government (and most newspapers and media outlets) have been hanging their hats on the RCMP Complaints Commission’s investigation to uncover everything that what went wrong in High River but not in the other two dozen communities in Alberta that were flooded and also subject to evacuation orders. The Complaints Commission established a very narrow terms of reference to only investigate the following three points:
- Whether the RCMP members or other persons appointed or employed under the authority of the RCMP Act involved in entering private residences in High River complied with all appropriate training, policies, procedures, guidelines and statutory requirements;
- Whether the RCMP members or other persons appointed or employed under the authority of the RCMP Act involved in seizing firearms from private residences in High River complied with all appropriate training, policies, procedures, guidelines and statutory requirements; and
- Whether the RCMP’s national-, divisional- and detachment-level policies, procedures and guidelines relating to such incidents are adequate.
That’s it! Nothing about what the Department of National Defence ordered the Canadian Forces to do, nothing about what the 380 soldiers did and witnessed in High River for the six days they were there, nothing about the Government of Alberta’s role in the whole mess, no real legal analysis of Alberta Emergency Management Act to determine if what was done in High River complied with the Act to authorize the searching of 4,666 homes in High River including forced entries into “more than 754 homes” and causing damage to more than 1,900 homes. Nothing about why the Alberta Bill of Rights and the Canadian Charter of Rights and Freedoms didn’t protect High River from this unprecedented invasion of privacy, the unwarranted search of their homes and seizure of private property (not just guns). Unfortunately, the seizure of guns was the main focus of the Commission’s investigation and everything else was only examined or reported if it was useful in trying to justify the misdeeds the RCMP committed in High River even before they started seizing guns.
II. Unwarranted entries into 4,666 homes not authorized in accordance with AEM Act
The most important oversight in the Commission’s Report is stated in:
- FINDING NO. 3: Pursuant to the Emergency Management Act, the Emergency Operations Centre authorized and instructed the RCMP’s entry without warrant and search of every High River building as part of the Emergency Operations Centre’s emergency plans.
- FINDING NO. 18: Pursuant to the Emergency Management Act, the Emergency Operations Centre authorized and instructed the RCMP’s entry of High River buildings without warrant to escort home inspection teams as part of the emergency plan.
The High River Emergency Operations Centre (EOC) did not do the authorizing and instructing – people did! Documents tabled in Parliament on September 15, 2014 by the RCMP response to Q-540(c) states:
- The Director of the Town of High River Emergency Operation Centre directed search teams to conduct a door to door search in High River.
- The RCMP High River incident commander approved the use of force as required to enter property. If forced entry was required, search teams were directed to cause the least amount of damage possible.
- The RCMP Complaints Commission report clarifies or contradicts Parliamentary documents by stating only one person, the Director of the High River Emergency Operation Centre made all the decisions and directed the RCMP to repeatedly enter 4,666 High River homes using whatever force is necessary. The report identifies the following individuals as responsible for directing the RCMP’s actions in High River:
- Between June 20, 2013 and June 24, 2013, the one man in charge was Ross Shapka, Manager of Protective Services (the bylaw officer) and in his absence, Len Zebedee, the Fire Chief.
- Between June 25, 2013 and July 13, 2013, the one man in charge was James Cornish, EOC Operations Chief, Director of Field and Recovery Operations, Alberta Emergency Management Authority
The fact is that this one-man theory defies common sense and law. No government, including the Town of High River Town Council, would ever approve a plan delegating their authority by making one man fully responsible and accountable for making such momentous decisions, especially in an emergency. In fact, the Alberta Emergency Management Act logically takes this account by making the “local authority” responsible for making these high stake decisions during times of stress in an emergency. Only the “local authority” has the power under the Act to declare a state of local emergency and only the “local authority” has the power to direct the unwarranted entry into to buildings in accordance with their bylaws and established emergency plan. The “local authority” in High River is the Town Council and the 1996 emergency plan they were actually operating under (in accordance with the AEM Act) did not include the unprecedented, unwarranted entries, using whatever force is necessary, into each every High River home regardless if homes were flooded or not.
Lawyer Rick Hemmingson’s legal analysis stated: “Since Mr. Shapka does not appear to be the person who made the original declaration of a state of local emergency in High River then, by law, his direction had to be given “in the operation of the Municipal Emergency Management Plan and related plans or programs”. As we have seen, that condition was spelled out in Section 12 of Bylaw 3843/96. The only written ‘plan or program’ we have been able to uncover is the MEMP [Municipal Emergency Management Plan] referenced above. Here’s where the RCMP’s purported authority begins to collapse on more than one front.”
According to the RCMP Complaints Commission’s report, the Director of the High River Emergency Operation Centre was making up plans on the fly rather than following the High River Town Council’s bylaws and their existing, approved written plan. The High River Town Council would have had to convene and resolve to amend their existing Emergency Plan by incorporating the revised Shapka/Cornish plans that resulted in an unprecedented violation fundamental rights and the Canadian Charter of Rights and Freedoms.
After reviewing the 480-page FOIP response including all the 362 pages of Scribe Notes taken in the High River Emergency Operation Centre from June 20, 2013 to June 25, 2013, there is no indication that the Town Council was ever convened to make the decision to approve the Shapka/Cornish revised emergency plan, that included having the RCMP conduct unwarranted entry into each and every home and business in High River (including those homes that weren’t even flooded) and authorizing the use of force to enter those homes and businesses.
Neither Shapka nor Cornish had a trace of legal authority to create their own “Emergency Plan” and the RCMP Complaints Commission turned a blind eye to that fundamental requirement in the Act. And – why didn’t the senior officers in the RCMP and the Alberta Justice Minister know this at the time?
The most important piece of evidence missing from the RCMP Complaints Commission report is the fact that they never interviewed Ross Shapka, the very guy they say made all these decisions initially and directed the RCMP to search homes and kick in doors if necessary. For more details of the issues that the Commission should have addressed as part of their analysis of “legal authorities” please read lawyer Rick Hemmingson’s detailed analysis of the Alberta Emergency Management Act in his Canada Free Press column entitled: Who authorized RCMP to make warrantless entries into High River homes during the 2013 flood?
III. Senior Gov’t officials confused about “legal authorities” for forced entries for weeks
Confusion about the “legal authorities” continued for weeks at the very highest levels of law enforcement in the provincial and federal government. And yet, the Commission’s report would have everyone believe that the local bylaw officer was the only one responsible for sorting out this confusion in one meeting at 6 am on June 21, 2013 and authorizing the RCMP to go ahead with their door-kicking plan. This scenario is simply not credible. No wonder Ross Shapka refused to be interviewed by the Commission’s investigators with this massive liability hanging over his head.
On June 25, 2013, Alberta Asst. Deputy Minister of Justice Bill Sweeney, Director of Law Enforcement and former Commanding Officer of the RCMP “K” Division Alberta from was so concerned about the RCMP forced entries into High River homes he e-mailed, RCMP Asst. Commissioner, Marianne Ryan asking, “What legal authority do the police rely on to forcibly enter private property in the flood stricken area? This was in relation to High River and breaking into homes looking for casualties. The Minister was aware that firearms have not been properly stored were seized during these searches and also anticipates that some residents will ask this question later.” If this learned, experience policeman and high level Justice bureaucrat didn’t know (six days after it all started) what “legal authorities” the RCMP were using to kick in ‘more than 754’ doors in High River, how did they expect the bylaw officer in the Town of High River to make an instant decision to approve police to enter every High River home thereby violating the Charter rights of thousands of residents and would ultimately cause so much damage to and seizures and destruction of private property?
On July 12, 2013, then RCMP Asst. Commissioner, Marianne Ryan (now Commanding Officer of the RCMP “K” Division Alberta with the rank of Deputy Commissioner) stated in an e-mail to Alberta Asst. Deputy Minister of Justice Bill Sweeney, “I am also aware of the provisions of the Emergency Management Act and we have obtained a legal opinion from our counsel through the DOJ as to how and when we should consider the provisions of this Act. It is my understanding that authority from the Minister should be obtained if homes are to be inspected for any health or structural issues.”
If this experienced police officer and the Department of Justice legal counsel were still confused about the ‘legal authorities” 22 days after the door-kicking began, how did they expect the High River bylaw officer to have approved all this on his own without any consultation with either with his own Town Council or with provincial officials sitting in the Emergency Operations Centres in High River and in Edmonton? It defies common sense and insults everyone’s intelligence.
IV. RCMP Forced Entries into 754 homes not justified – not one person found as a result
On pages 5 & 6 of the RCMP Complaints Commission’s report they state: RCMP members entered 4,666 homes, and forced entries into more than 754 of those homes. The RCMP Complaints Commission’s report also stated:
- FINDING NO. 7: Forcible entry was implicitly permitted for the purpose of effecting the searches to protect life, to the extent that the minimum amount of damage necessary was caused. [my emphasis]
- FINDING NO. 8: While inadequate records were kept, it is reasonable to conclude that given their role in the emergency plans, RCMP members determined the means used to gain entry to the buildings.
Most importantly, MP SCOTT REID’S ORDER PAPER QUESTION Q-541(c)(iii) asked: how many people were located by the RCMP, or assisted by the RCMP, as a result of the RCMP’s forced entry into residential or non-residential buildings in and around the Town of High River. RCMP RESPONSE Q-541(c)(iii) None.
The term “implicitly permitted” just isn’t a good enough reason for Mounties to start kicking in hundreds of doors to High River homes. Common law with respect to police reliance on exigent circumstances indicates there has to be a clear and present danger to the person inside that is obvious to the officer knocking on the front door, such as a person calling for help, or by looking in the window and seeing someone in distress or by using infrared technologies that were available to the RCMP and the Canadian Armed Forces to determine if there is a heat signature of a person inside the home. None of this happened, the Mounties just started kicking in doors whether the home was flooded or not.
Reports from High River folks determined that Mounties kicked in doors that weren’t even locked; although, the RCMP Complaints Commission report did not address why the RCMP did such a stupid thing. The handwritten notes taken by RCMP search teams indicate they also kicked in doors inside homes and they also kicked in doors to outdoor sheds. Once again, the Commission’s report did not address why RCMP resorted to these unreasonable searches and the excessive use of force by the Force.
Even if there was an overzealous start to the forced entries on June 20th and 21st, the effectiveness of the whole exercise, especially the forced entries, should have been reassessed at least on a daily basis, if not more often. There is no evidence whatsoever that this prudent approach was taken by the RCMP supervisors in charge. The RCMP’s forced entries and damage to more than 1,900 homes continued after June 24th, the day when the number 754 forced entries was arrived at. Unfortunately, that was the time when the Commission report says the RCMP also stopped taking detailed notes.
Why did they just keep on kicking in doors when they weren’t finding anyone in the homes? It doesn’t make any sense to just keep kicking in doors and never finding anyone who needed rescuing. One would have thought a 100 doors kicked in would have been enough to learn this valuable lesson. By the time the RCMP kicked in two or three hundred doors one would think the folly of these actions would have been more than obvious to even the most junior of RCMP Constables, let alone Inspectors, Superintendents and Assistant Commissioners. But no, they kept right on until they had made unwarranted entries into all 4,666 High River homes.
Then if that wasn’t enough, they spent the next nineteen days doing it all over again. Newspaper reports last August stated that the Town of High River had paid out about 1,550 damage claims at a cost of $2.2 million for the RCMP’s actions. So much for causing a “minimum amount of damage” as ordered by RCMP Superintendant Frank Smart and restated as a condition in the High River EOC’s revised plan.
Inexplicably, the 143 pages of handwritten notes taken by the RCMP search teams between June 20 and 24, 2013, clearly show that the RCMP search teams did not kick in the doors to businesses in High River. They looked in the windows and most likely called out with their loud hailers and moved on to the next building . Why treat the businesses differently than the homes? Using the RCMP rationale for searching High River homes and kicking in doors to do so, people could have been trapped inside businesses just as easily as inside their homes. The RCMP Complaints Commission had access to the same handwritten notes I have, so why wasn’t this fact reported?
V. RCMP Officers were not in the 4,666 High River homes lawfully
As noted in the above “legal authorities” analysis, neither Ross Shapka, the High River bylaw officer and James Cornish, Provincial EOC Operations Chief did not have the authority to act alone under the Alberta Emergency Management Act to revise the Municipal Emergency Management Plan that included directing the RCMP to search all 4,666 High River homes and the use of force to enter those homes either during the initial four days while the RCMP say they were searching for survivors or during next nineteen days in the home inspection phase. Consequently, the RCMP entered all 4,666 High River homes unlawfully on both occasions and, consequently, had no authority to seize anything under the “plain view doctrine”.
VI. Number of people “rescued” by RCMP searches not supported in any Handwritten Notes
On page 30 of the RCMP Complaints Commission report they stated: “By late afternoon on Day 5 (June 24), RCMP-led teams completed the house-to-house searches, ending their involvement in the search phase of the rescue operation. By that time, the RCMP had searched more than 4,600 homes and facilitated the rescue of approximately 38 people as a result of the house-to-house searches. Footnote 19: This number appears to be an estimate. There was no uniform tracking system and on other occasions it has been reported as 28 people rescued.” The Commission used the words “rescue” whereas in documents tabled in Parliament the RCMP said the “38 were provided assistance in evacuating the town.” [My emphasis]
The Commission was so unsure of the actual number of people “rescued, as result of the massive search of High River homes, that they didn’t even include it as one of their official findings in their report. Here’s why there is so much confusion:
- (a) In a letter dated August 16, 2013 from “K” Division Commanding Officer Dale McGowan to the Alberta Property Rights Advocate: “During these building searches, several people (28) were indeed found stranded in their homes and were subsequently rescued.”
- (b) In an e-mail dated July 12, 2013, from Asst. Commissioner Marianne Ryan’s to an unknown recipient: “During the these residential searches, several people (28) were indeed found stranded in their homes and were subsequently rescued.”
- (c) In RCMP e-mail dated June 24, 2013 at 7:12 pm from RCMP Superintendent Frank Smart states: “As of 1500hrs today, RCMP led by STO have completed the physical search of all homes in High River (with the exception of a small amount in quadrant 8 which is underwater).” Houses\Buildings 3,337 – Forced Entries 674 – People located 303.” My Note: No mention made of anyone being “rescued” or helped “in evacuating the town.”
- (d) This is an excerpt from an e-mail entitled “Search Numbers” dated June 25, 2013 to RCMP Supt. Frank D. Smart: “Buildings entered: 4,668; Forced Entries: 754; People Located in Evac Zones: 327; Rescued people (Initiated by STO Team for various reasons): 38”. My note: STO = Special Tactical Operations.
- (e) In response to Order Paper Questions submitted by Conservative MP, Scott Reid, the RCMP tabled the following in Parliament on September 15, 2014. Q-541 (c)(ii) “A total of 364 people were located within the portion of the mandatory evacuation area subject to the door-to-door search of residential and non-residential properties searched by the RCMP and other emergency responders. Of these 364 people, 38 were provided assistance in evacuating the town. The remaining 326 people refused the assistance of emergency responders.”
- (f) In the 143 pages of handwritten notes taken by the RCMP search teams between June 20 and June 24, 2013, there is not a single recorded note of anyone being saved, rescued or helped in any way. There are dozens of notes about pets being rescued, fed and watered but nothing about people being helped!
- (g) Evidence of the RCMP saving people by their unwarranted and forced entries is also not mentioned in the 362 pages of handwritten scribe notes taken in the High River Emergency Operation Centre between June 20th and June 25th inclusive.
Compare the RCMP’s lack of note-taking above concerning the number of people rescued or helped out of town compared with the notes and care the RCMP took in documenting their pet rescues. An e-mail dated June 23rd is entitled: “RCMP- Pet Rescue efforts continue in High River.” Then this is followed by a five page document entitled: “FLOOD ZONE -ANIMALS REPORTED LEFT ON PROPERTIES.” The following summary of the number of pets rescued by the RCMP was included in the minutes of their meetings: June 26, 2013 – “430 pets rescued so far”; June 30, 2103 – “690 pets rescued”; July 1, 2013 – “960 pets rescued.” Why did the RCMP take such care documenting the pets they rescued and not make any notes about the people they “rescued” or “helped evacuate town”?
Clearly, the RCMP encountered a few High River residents who refused to evacuate, most likely because their homes weren’t flooded. Perhaps a few residents later decided to leave, after many days without power, and needed RCMP assistance to get out of town. Characterising these 28 or 38 as “rescues” does not fit with the rest of the evidence, including the absence of a single note to that effect. This huge missing piece of documentation explaining the RCMP’s actions in High River was not adequately addressed in the RCMP Complaints Commission report!
VII. Why wasn’t the High River plan implemented in the other 30 flooded communities?
There are many reasons why the full judicial enquiry of the High River forced entries, unwarranted searches and seizures is necessary. In 2012, the Province of Alberta called for a judicial enquiry into health care queue-jumping. The government response to what happened during and following the flooding in High River involves far more serious rights violations and unintended consequences that that queue-jumping issue ever did. The Province of Alberta should be initiating their own independent investigation into the High River fiasco to determine: Why did it all go so wrong in High River and so right in 30 other flooded Alberta communities? Why did no other police force in Alberta (including the RCMP) in other flooded communities not have to kick in even one door? Something went dramatically off the rails in High River. In examining all the handwritten notes taken by RCMP scribes, National Defence scribes and the Town of High River scribes, none are more revealing than the following series of scribe notes transcribed from in the Town of High River FOIP response:
PDF Page 170 (Scribe page 82) – June 21, 2013 – 6:14 am
– “We have Scott Fuller & Superintendant Smart”
– “Starting to roll out a search of all homes”
– “be on the same page and that is being done as we speak”
– “when it comes to that – the search needs to be done”
– “a unified [My note: High River staff tell me no redactions were made to this note]
– “300 military are coming & will be here this afternoon”
PDF Page 262/263 (Scribe page 174/175) – June 21, 2013
– “list of people missing or in houses will be top priority”
– “RCMP STO in attendance – they need to know if search will be systematic or just high priority searches, hard to say where we will search first, have lots of people coming to search.
– “RCMP suggesting that STO be in charge of systematic search since they have expertise Military will come under STO when they arrive.”
PDF Page 264 (Scribe page 176) – June 21, 2013
– “RCMP Lead – (2) Begin to develop search plan of police – no areas of town that we can say are searched and clear for sure”
PDF Page 274 (Scribe page 186) – June 21, 2013
– “8:42 am Update to RCMP Frank Smart – mustering for search of residences – coord S&R with ATCO & FORTIS”
– “RCMP – no equip to get into some areas – waiting for military to arrive from Edmonton – military will work under command of RCMP”
PDF Page 176 (Scribe page 88) – June 21, 2013 – 1:35 pm
– “RCMP will be conducting door-to-door sweep. If homes are locked they will be entering homes by any means necessary.”
It appears the RCMP/STO came into High River assuming they were going to search each and every home in High River (come hell or high water, whether the homes were flooded or not) and the notes would indicate that their assumption was never challenged by the Directors of the EOC, by the High River Mayor and Council, by the provincial staffers in High River, by Jim Cornish from the Provincial Operations Centre (POC) by the office of the Alberta Minister of Justice and Solicitor General or by the Doug Griffiths, Minister of Municipal Affairs, the man ultimately responsible for Emergency Management in Alberta.
What happened to the Rule of Law? Are the RCMP above the law? This year is the 800th anniversary of the Magna Carta. If the King is not above the law, how did the RCMP manage it?
It is incumbent on the Prentice Government to correct the mistakes made by the Redford Government in High River during and following the flood. At a minimum, the High River report should result in a rewriting of the Alberta Emergency Management Act to address the manner in which decisions should be, made, authorized, delegated and implemented in every Alberta community when the RCMP “suggest” unwarranted entries, using whatever force is necessary, into homes during an emergency.
VIII. How can High River home owners ever trust the RCMP again?
On August 7, 2014, Canada’s National Firearms Association issued a news release entitled:“POLL OF HIGH RIVER RESIDENTS SHOWS A DISMAL LACK OF TRUST IN RCMP.” Here is an excerpt from the NFA release: “The telephone poll was conducted during the evenings of August 5 and 6 and asked the following question: “Knowing what you know today, if High River had another flood would you obey an evacuation order?” A total of 2,296 total phone connections were made with 444 persons completing the poll, and of those, 39% answered Yes, 44% answered No and 17% were Undecided.. If we consider the poll results for just those residents who had made up their minds, 53% would refuse to evacuate their homes if a state of emergency was declared.”
Once RCMP Commissioner Paulson has released his response to the RCMP Complaints Commission’s High River report, another poll or series of polls will be necessary to see if the response by the federal and provincial governments has re-built the trust of High River homeowners.
Trust will never be rebuilt in High River until there has been a full airing of the facts and this means the power to subpoena witnesses and have everyone testify under oath. That means there must be a judicial inquiry must be called by either the federal or provincial government or both.
IX. The RCMP Complaints Commission’s investigation fell short in many, many ways.
I will be writing a number of letters to Commission Chair Ian McPhail to address the report’s shortcomings. These missing elements were as a result of the constraints established by legislation and a mandate that was too narrowly focused and are not a reflection of the competence or integrity of the Commission Chair or the diligence of his investigators.
- Example #1: There were many stories being told by High River residents of RCMP officer’s were seen “high-fiving” each other after kicking in doors. This matter was not included in the Commission’s High River report because investigators were unable to convince anyone in High River witnesses who were willing to have their names made public.
- Example #2: The report states in FINDING NO. 31: There is no information to support the claim that RCMP members breached any gun safes. One of the main reasons no witnesses came forward is because they were intimidated by the RCMP.
Here is my first letter published in the Canadian Shooting Sports Association’s E-News blast dated February 18, 2015: WHY DIDN’T THE RCMP TELL REPORTERS THE WHOLE TRUTH IN 2013?
Dennis Young retired to Airdrie, Alberta, in 2007 after working for 13 years on Parliament Hill for Garry Breitkreuz, MP for Yorkton-Melville. Dennis is a member of the Calgary RCMP Veterans Association and a Honourary Life Member of both the Canadian Shooting Sports Association and the National Firearms Association. For his 20-year crusade for the rights of firearms owners, Dennis received the NFA’s David A. Tomlinson Memorial Award for 2014 and the CSSA’s John Holdstock Memorial Award for 2014.