Friday, 19 February 2021
Tortured by Canadian government: r.c.m.p oversight pt 4
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Tortured by Canadian government: RCMP Oversight pt3
Tortured by Canadian government: RCMP Oversight pt3: CIVILIAN REVIEW AND COMPLAINTS COMMISSION FOR THE ROYAL CANADIAN MOUNTED POLICE COMMISSION'S INTERIM REPORT Royal Canadian Mounted Poli...
Tortured by Canadian government: RCMP oversight pt2
Tortured by Canadian government: RCMP oversight pt2: November 20, 2020 Joseph Aaron Harms 1811 Valleyview Road NE Calgary, AB T2E 6G4 josephharms72@gmail.com Joseph Aaron Harms: Having conside...
Tortured by Canadian government: Civilian Review and Complaints Commission for the...
Tortured by Canadian government: Civilian Review and Complaints Commission for the...: Civilian Review and Complaints Commission for the Royal Canadian Mounted Police Final Report (under section 45.72(2) of the Royal Canadian ...
RCMP Oversight pt3
CIVILIAN REVIEW AND COMPLAINTS COMMISSION
FOR THE ROYAL CANADIAN MOUNTED POLICE
COMMISSION'S INTERIM REPORT
Royal Canadian Mounted Police Act
Paragraph 45.71(3)(a)
DEC 3 2019
Complainant
Mr. Joseph Harms
File No • PC-2016-2649
Canada11
COMMISSION'S INTERIM REPORT
INTRODUCTION
This review arises from the RCMP's disposition of a public complaint filed by
Joseph Harms, concerning the conduct of Constable Colin Folk, Corporal Rick Dozois,
Constable Thomas Parker and Constable Larry MacDonald, all of the Athabasca
Detachment in Alberta, in relation to criminal charges laid against the complainant for
which he was acquitted at trial.
Mr. Harms lodged a complaint on November 3, 2016, with the Civilian Review and
Complaints Commission for the Royal Canadian Mounted Police ("the Commission").
Mr. Harms' allegations include that Constable Folk denied his right to counsel and lied
in his testimony, that Corporal Dozois threatened him, and that an improper
investigation was conducted.
The RCMP investigated the complaint pursuant to the Royal Canadian Mounted
Police Act ("the RCMP Act"). In a report dated April 15, 2019, the RCMP did not support
the allegations.1
On May 7, 2019, the Commission received a request from Mr. Harms to review the
RCMP's report.
On August 13, 2019, the Commission requested all relevant materials from the
RCMP, and on August 27, 2019, it received these materials.
After review, for the reasons outlined below, the Commission has determined that
the RCMP's disposition of Mr. Harms' complaint is unreasonable, in part.
COMMISSION'S REVIEW OF THE COMPLAINT
The Commission is an agency of the federal government, separate and
independent of the RCMP. When it reviews a complaint, the Commission does not act
as an advocate for either the complainant or the RCMP members. Rather, its role is to
investigate independently and make findings after conducting an objective examination
of the information available to it.
The Commission's conclusions are based on a thorough review of Mr. Harms'
complaint, request for review and the trial transcript he provided, the RCMP's
investigational materials and report, as well as relevant policy and law.
1 The relevant materials contained a copy of the RCMP's report dated April 30, 2019. Aside from the date,
the documents were identical.
BACKGROUND FACTS
On May 21, 2011, Mr. Harms was arrested and charged with sexual assault2after
his stepdaughter called 911 to report that she had been sexually assaulted.
Constable Folk was dispatched to respond to the call. Upon arriving at the family's
residence, Constable Folk spoke with Mr. Harms' stepdaughter, who reported that
during the course of an argument, Mr. Harms had, among other things, ripped off her
clothes. Constable Folk located Mr. Harms in the basement; he was holding what
appeared to be a handgun but it was in fact a BB gun. Upon Constable Folk's direction,
Mr. Harms tossed the gun into the corner. Constable Folk then asked Mr. Harms about
the incident.3Upon Corporal Dozois attending the residence, Mr. Harms was arrested
for sexual assault. Shortly thereafter, at approximately 6:20 p.m., Constable Folk
provided Mr. Harms with his constitutional rights, including his right to counsel and the
police caution. At that time, Mr. Harms indicated that he wanted to speak with a lawyer.
Constable Folk transferred him to the detachment. While at the detachment, at
approximately 7:07 p.m., Constable Folk received direction from Corporal Dozois to
obtain fingernail clippings from Mr. Harms for the purpose of DNA analysis. At
7:50 p.m., Mr. Harms' handcuffs were removed and he was provided an opportunity to
contact counsel.
At trial, Mr. Harms was acquitted, as his stepdaughter admitted to lying about parts
of her testimony. The Crown essentially refused to put the stepdaughter's evidence
before the jury, as she was an unreliable witness. Moreover, during the course of the
trial, the Court criticized Constable Folk's conduct regarding Mr. Harms' right to counsel
and his right to silence, and as a result, determined that certain statements made by
Mr. Harms were inadmissible.
Finally, prior to commencing the analysis, the Commission notes that its mandate
is remedial and non-disciplinary in nature. Accordingly, the Commission does not have
jurisdiction to award monetary compensation or to terminate the employment of an
RCMP member.
ANALYSIS
FIRST ALLEGATION: Constable Folk denied Mr. Harms the right to contact
counsel.
Paragraph 10(b) of the Canadian Charter of Rights and Freedoms4 ("Charter")
provides that "[e]veryone has the right on arrest or detention ... to retain and instruct
counsel without delay and to be informed of that right ... ."
2Mr. Harms was also charged with other offences in connection with the alleged incident.
3 Constable Folk's question elicited from Mr. Harms a non-cautioned statement that was excluded at trial
on the basis that it was an infringement of his right to counsel and right to silence.
4 Canadian Charter of Rights and Freedoms, s 10, Part 1 of the Constitution Act, 1982, being Schedule B
to the Canada Act 1982 (UK), 1982, c 1 1.
2
In his public complaint statement, Mr. Harms claimed that he spent four days in
cells and at no time was he afforded a call to a lawyer.
In its report, the RCMP conceded that there was a delay in affording Mr. Harms
with an opportunity to contact legal counsel, but justified the delay based on the exigent
circumstances of needing to obtain his fingernail clippings for evidence.
This issue was addressed at tria1.5In his ruling on the voir dire held to determine
the admissibility of three statements or utterances made by Mr. Harms to
Constable Folk, Mr. Justice Michalyshyn indicated the following:
At the end of the day, on the evidence it's hard not to conclude that nearly from
the get-go in this investigation Constable Folk could have cared less about
Mr. Harms' right to counsel or his right to silence.
His Honour also found that Constable Folk had a cavalier attitude with respect to
the unexplained delays in facilitating Mr. Harms' right to counsel and noted the RCMP
member's selective note-taking. The Court determined that the statement Mr. Harms
made in the basement of his residence prior to his arrest was inadmissible based on a
violation of Mr. Harms' right to counse1.6
In excluding this statement from the evidence, the Court stated as follows:
Here the evidence is of an officer who simply moved forward with his
investigation, either in ignorance of or willful disregard for well-established
Charter standards. The deliberate nature of Constable Folk's actions, in my view,
negate considerations of good faith, and it is conduct which the Court should and
does wish to distance itself from.
The Court determined that two other statements were inadmissible but on different
grounds. These two statements were made by Mr. Harms at the detachment, after he
had indicated that he wished to exercise his right to contact counsel but before being
provided the opportunity to do so. The Court concluded that the statements were
excluded on the basis that their probative value was tenuous and their prejudicial effect
was substantia1.7
However, the Court fell short of excluding these two statements on the basis of a
paragraph 10(b) Charter breach. The Court concluded, with considerable hesitation,
that in terms of the two statements made at the detachment, the unexplained delay in
facilitating Mr. Harms' ability to contact a lawyer was not a violation of his right to
counsel. In making this finding, the Court noted that the delay that occurred after
5 R v Harms (2013), Court of Queen's Bench of Alberta, Action No. 110584125Q1.
The Crown conceded that this statement was a breach of Mr. Harms' paragraph 10(b) Charter rights.
7The Court cited R v Hunter, 2001 CanLII 5637 (ONCA).
3
Constable Folk was advised by Corporal Dozois to obtain Mr. Harms' fingernail
clippings, at 7:07 p.m., was reasonable to protect the collection of relevant evidence
(the potential DNA on his fingernail clippings).
Accordingly, the suggestion in the RCMP's report that the entire delay in affording
Mr. Harms the opportunity to contact a lawyer was attributable to the need to collect his
fingernail clippings is irreconcilable with the Court's finding and the available evidence
provided to the Commission. In accordance with the finding at trial, there was an
unexplained delay essentially from the time when Mr. Harms indicated that he wanted to
speak with a lawyer shortly after 6:20 p.m. and 7:07 p.m., when Constable Folk was
directed by Corporal Dozois to keep Mr. Harms in handcuffs and collect his fingernail
clippings. In other words, the issue of the fingernail clippings did not arise until
approximately 40 minutes after Mr. Harms was arrested and provided with his rights and
police caution, and indicated that he wanted to speak with a lawyer.
While the Court determined that, in the circumstances, the approximately
40-minute delay in facilitating the right to counsel was not a violation of Mr. Harms'
paragraph 10(b) Charter rights, the Commission notes that there was no reasonable
explanation for such a delay presented at trial. Moreover, there is no apparent
explanation in Constable Folk's or Corporal Dozois' police notes or in Constable Folk's
general report for such a delay.
It is noted that RCMP national arrest policy directs that, when making an arrest, an
RCMP member must promptly or as reasonably prudent, comply with paragraphs 10(a)
and (b) of the Charter8The policy that was in effect at the time also indicated that a
detainee's right to make initial contact with counsel "can be exercised when he/she is
arrested or later while in custody."9The RCMP's arrest policy has since been updated
and provides, with respect to that provision, that a detainee's right to make initial contact
with counsel "can be exercised when they are arrested, and as soon as practicable."19
The amended version of the policy is more aligned with the jurisprudence in this
area. In a recent decision, the Ontario Court of Appeal stated that if a detained person
exercises their right to counsel, the police must immediately provide the detainee with a
reasonable opportunity to speak with counsel." The Court also indicated that specific
circumstances, often related to police or public safety, or the preservation of evidence,
may justify some delay in providing access to counse1.12
Finally, contrary to Mr. Harms' contention that he was not afforded an opportunity
to contact a lawyer for the entire four days while in RCMP cells, the evidence reveals
that on the evening of his arrest, albeit after considerable delay, his handcuffs were
RCMP Operational Manual, chap 18.1. "Arrest and Detention."
9 !dem, s4.6.
19 !dem, s 3.6. (amended 2018-06-01).
R v Rover, 2018 (ONCA) 745 at para 25.
12 ldem, para 26.
4
removed and he was placed in the cell block phone room for the purpose of calling a
lawyer.
In light of the above, the Commission finds that Constable Folk denied Mr. Harms
his right to counsel by eliciting a statement from him in the basement without first
providing him with his paragraph 10(b) Charter rights. However, given the finding at trial
that the approximately 40-minute delay in facilitating Mr. Harms' right to counsel was not
a breach of paragraph 10(b) of the Charter, the Commission is not prepared to find that
Mr. Harms was unreasonably denied his right to contact legal counsel after being
arrested.
In conclusion, the Commission recognizes that the events giving rise to this
complaint occurred over eight years ago. Under the circumstances, it would serve no
useful purpose to make any recommendations for further action regarding the conduct
of Constable Folk, as this would only prolong the complaint process. Accordingly, the
Commission is satisfied that by reading this report, Constable Folk will be made aware
of the Commission's concerns respecting his disregard for Mr. Harms' right to counsel
during their discussion in the basement.
FINDING
1) Constable Folk unreasonably denied Mr. Harms his right to counsel by
eliciting a non-cautioned statement from him in the basement; however,
while there was a delay, Mr. Harms was not unreasonably denied his right to
contact counsel after being arrested.
RECOMMENDATION: That Constable Folk be directed to read this report.
SECOND ALLEGATION: Constable Folk provided false information when he
testified at trial that Mr. Harms' ex-wife was not present when Constable Folk
arrived at the residence.
In reviewing this allegation, the Commission notes that the RCMP's disposition is
generally consistent with the investigation materials and the trial transcript. There is no
dispute that Constable Folk testified that while he was talking to Mr. Harms'
stepdaughter at the residence, her mother (Mr. Harms' ex-wife) arrived home. However,
this appears to have been an inadvertent mistake on his part, as there is no evidence to
suggest that he intentionally mislead the court. Moreover, in the Commission's view, it is
immaterial whether Mr. Harms' ex-wife was present when Constable Folk arrived at the
residence or came home shortly thereafter. Accordingly, the Commission finds that the
information before the Commission does not support the allegation that Constable Folk
intentionally provided false information when he testified at trial.
5
FINDING
2) The information before the Commission does not support the allegation
that Constable Folk intentionally provided false information when he
testified at trial.
THIRD ALLEGATION: Constable Folk failed to conduct a proper investigation.
Mr. Harms contends that Constable Folk conducted an improper investigation,
because the DNA analysis revealed no evidence, Mr. Harms' stepdaughter had made
similar accusations against other people and then recanted, there was no documented
evidence of bruising or choking as alleged by his stepdaughter, and the clothes worn by
Mr. Harms and his stepdaughter were not seized for analysis.
In its report, the RCMP addressed the issues raised by Mr. Harms, concluding that
Constable Folk was not negligent in his duty to investigate. In doing so, the RCMP
explained that essentially there were no meaningful results of the samples submitted for
forensic analysis. The RCMP also indicated that the investigation was largely based on
witness testimony (statements), corroborated by other evidence. Finally, the RCMP
noted that Mr. Harms was committed to stand trial after his preliminary inquiry, which
required the standard of there being some evidence upon which a reasonable jury
properly instructed could convict.
Consistent with the available information,13the Commission is satisfied that the
RCMP has reasonably addressed the issues raised by Mr. Harms in terms of the
investigation. In particular, it is apparent that there was a miscommunication with the
forensic laboratory responsible for conducting the DNA analysis that may have
contributed in part to the delay in the testing of some of the samples. While this was
unfortunate, ultimately it did not have any impact on the outcome of the investigation.
Moreover, there is no suggestion in the evidence that this was intentional on the part of
the RCMP or "an act of fraud," as Mr. Harms contends.14
Furthermore, while inconsistencies in Mr. Harms' stepdaughter's evidence arose
during her testimony at trial, a review of her statement provided to Corporal Dozois does
not reveal any material discrepancies. Moreover, Mr. Harms' ex-wife's statement
corroborated aspects of his stepdaughter's statement relating to events that happened
directly after the incident. Notably, the unreliability of Mr. Harms' stepdaughter only
became evident under effective cross-examination by defence counsel.
la The RCMP did not provide the criminal investigation operational file in the relevant materials, although
portions of it were included, such as the statements taken by Corporal Dozois of Mr. Harms' stepdaughter
and his ex-wife.
14Although Mr. Harms suggested that better training in the forensics side of policing be provided to
RCMP members, it is unclear how this would have changed the outcome of the investigation or the trial.
6
[32] Finally, contrary to Mr. Harms' contention, there is nothing in the available
information to suggest that the subject RCMP members, including Constable Folk,
suffered from tunnel vision or failed to consider relevant evidence.
FINDING
3) Based on the available information, it was reasonable for the RCMP to
conclude that Constable Folk's investigation was not improper.
FOURTH ALLEGATION: Corporal Dozois threatened Mr. Harms.
Mr. Harms contends that after Corporal Dozois picked up the BB gun, he came up
to him with two fingers and "slammed" them off his forehead, saying "I ought just shoot
you in the fucking head right now." In his public complaint statement, Mr. Harms stated
that he then lunged at Corporal Dozois, telling him, "How dare you threaten me in my f--
own house." Mr. Harms also stated that Constable Folk got between them, telling
Mr. Harms to relax and that they would straighten things out at the station.
In its report, the RCMP indicated that when asked about it by the Commissioner's
delegate, Corporal Dozois and Constable Folk unequivocally denied that this incident
happened The RCMP noted that there were two conflicting versions of events and
concluded, on a balance of probabilities, that the allegation was unsupported, as the
evidence did not establish whether or not the allegation occurred.
This case is in essence a "he said/he said" situation with respect to what may have
transpired between the subject members and Mr. Harms. Notably, Corporal Dozois'
notebook entries indicate that Constable Folk escorted Mr. Harms up the stairs of the
basement and out of the house. Corporal Dozois then recorded that he retrieved the BB
gun. This sequence of events as recorded in Corporal Dozois' contemporaneous police
notes is inconsistent with Mr. Harms' version of events and therefore tends to
undermine the reliability of his account.
In the absence of some reasonable information to confirm Mr. Harms' account, the
Commission is unable to conclude, on a balance of probabilities, that his version is
more probable than the unequivocal denials of the subject members. Accordingly, the
Commission finds that there is insufficient information to conclude that Corporal Dozois
threatened Mr. Harms by saying that he should shoot him.
FINDING
4) There is insufficient information to conclude that Corporal Dozois
threatened Mr. Harms.
7
FIFTH ALLEGATION: Corporal Dozois failed to conduct a proper bail hearing by
providing unnecessary information to the justice.
Mr. Harms contends that Corporal Dozois, who was acting for the Crown as
prosecutor, stated during the bail hearing that Mr. Harms at one time had been
incarcerated and "admitted to murdering someone some years previously." Mr. Harms
further contends that Corporal Dozois also stated that he could not tell that the BB gun
found at the house was fake.
In its report, the RCMP noted that there was no information in terms of what
representations were made during Mr. Harms' bail hearing. The RCMP indicated that
the "Criteria for Detention of Accused" form completed by Corporal Dozois identified
Mr. Harms' criminal record, which includes convictions for escaping lawful custody,
failure to attend court, and attempted murder. The RCMP concluded that the information
provided during the bail hearing was correct and factual, and within the scope of
Corporal Dozois' duties.
As noted in the RCMP report, there is no transcript of the bail hearing.
Nonetheless, the Commission notes that section 518 of the Criminal Code of Canada
sets out the type of evidence that may be adduced at a bail hearing (also referred to as
a show cause hearing). Generally, section 518 attempts to inject some informality into
the bail hearing; hence, the strict rules of evidence that are engaged at criminal trial are
not necessarily applicable at a bail hearing. Specifically, the prosecutor is able to
introduce "any relevant evidence," including the accused's criminal record. Additionally,
the justice of the peace (or provincial court judge) is permitted to consider any evidence
relating to the need to ensure the safety or security of the victim or witnesses and base
their decision on evidence that the justice considers credible or trustworthy.
Contrary to Mr. Harms' contention that Corporal Dozois sabotaged Mr. Harms' bail
hearing and "abused his powers," the Commission is satisfied that in accordance with
the provision of section 518 of the Criminal Code, it was reasonable for Corporal Dozois
to introduce into evidence Mr. Harms' criminal record, including his conviction for
attempted murder. Moreover, given the scope of information permitted as evidence at a
bail hearing, it was not unreasonable for Corporal Dozois to indicate that Mr. Harms
possessed a replica handgun that was in fact a BB gun.
In terms of Mr. Harms' claim that Corporal Dozois stated during the bail hearing
that Mr. Harms admitted to murdering someone, there is insufficient information to
conclude that Corporal Dozois knowingly provided false information during the bail
hearing.
In light of the above, the Commission is satisfied that Corporal Dozois reasonably
conducted Mr. Harms' bail hearing and did not provide the justice with unnecessary or
false information.
8
FINDING
5) Corporal Dozois did not provide the justice with unnecessary or false
information at Mr. Harms' bail hearing.
SIXTH ALLEGATION: Constable MacDonald and Constable Parker were not
proactive in providing information when exposed to the alleged lies of
Constable Folk.
As noted in the RCMP's report, Mr. Harms has provided no details or explanation
in terms of this allegation. His only reference in his public complaint statement to
Constables MacDonald and Parker is to state that during one of the trial days, the
RCMP members ate lunch in the cafeteria seated at the same table as Constable Folk
and Corporal Dozois.
Given the lack of information and detail from Mr. Harms in regard to the allegation,
the Commission is satisfied with the RCMP's determination that the allegation is
unsupported.
FINDING
6) Given the lack of information and detail, the RCMP reasonably concluded
that the allegation is unsupported.
[45] Pursuant to paragraph 45.71(3)(a) of the RCMP Act, the Commission respectfully
submits its Interim Report.
93.23 ichelaine Lahaie
Chairperson
RCMP oversight pt2
November 20, 2020
Joseph Aaron Harms
1811 Valleyview Road NE
Calgary, AB T2E 6G4
josephharms72@gmail.com
Joseph Aaron Harms:
Having considered the RCMP Commissioner’s response to the Commission’s interim
report with respect to your complaint, I hereby forward, in accordance with the
provisions of subsection 45.72(2) of the Royal Canadian Mounted Police Act, the final
report setting out my findings and recommendations in this matter.
Yours truly,
Michelaine Lahaie
Chairperson
Encl.
Civilian Review and Complaints Commission for the Royal Canadian Mounted Police Final Report
Civilian Review and Complaints Commission
for the Royal Canadian Mounted Police
Final Report
(under section 45.72(2) of the Royal Canadian Mounted Police Act)
Complainant Joseph Harms
File number 2016-2649
Dates
Complaint November 3, 2016 Commission’s
interim report
December 30, 2019
RCMP’s initial
report April 15, 2019 Commissioner’s
response
October 7, 2020
Review request May 7, 2019 Commission’s
final report
November 20, 2020
Overview
[1] Mr. Harms asked the Commission to review a decision by the RCMP that did not
support his allegations against RCMP members involved in arresting him, investigating
him, conducting his bail hearing, and testifying at his trial.
Decision
[2] The Commission is not satisfied, in part, with the RCMP’s report into the
matter.
Subjects of the complaint
Name Detachment (at the time of the
incident)
Constable Colin Folk
Corporal Rick Dozois
Constable Thomas Parker
Constable Larry MacDonald
Athabasca, Alberta
Protected “A”
2
Process
[3] The Commission is an independent agency that impartially reviews complaints
made by the public about RCMP member conduct. It is not part of the RCMP.
[4] The Commission relied on the following evidence to reach its decision:
The police file into the original incident
The public complaint
The RCMP’s investigation into the public complaint
Mr. Harms’ review request and the trial transcript he provided
Relevant law and policy
[5] After reaching its decision, the Commission sent a report to the RCMP
Commissioner (Schedule 1), as required by the RCMP Act, explaining why it was not
satisfied with the RCMP’s report.
[6] The RCMP Commissioner sent her response to the Commission (Schedule 2)
and explained what would be done about the case. The Commission considered the
response and is now issuing this final report.
Facts
[7] On May 21, 2011, Mr. Harms was arrested and charged with sexual assault1
after his stepdaughter called 911 to report that she had been sexually assaulted.
Constable Folk was dispatched to respond to the call. Upon arriving at the family’s
residence, Constable Folk spoke with Mr. Harms’ stepdaughter, who reported that
during the course of an argument, Mr. Harms had, among other things, ripped off her
clothes. Constable Folk located Mr. Harms in the basement; he was holding what
appeared to be a handgun but it was in fact a BB gun. Upon Constable Folk’s direction,
Mr. Harms tossed the gun into the corner. Constable Folk then asked Mr. Harms about
the incident.2
[8] Upon Corporal Dozois attending the residence, Mr. Harms was arrested for
sexual assault. Shortly thereafter, at approximately 6:20 p.m., Constable Folk provided
Mr. Harms with his constitutional rights, including his right to counsel and the police
caution. At that time, Mr. Harms indicated that he wanted to speak with a lawyer.
1 Mr. Harms was also charged with other offences in connection with the alleged incident.
2 Constable Folk’s question elicited from Mr. Harms a non-cautioned statement that was excluded at trial
on the basis that it was an infringement of his right to counsel and right to silence.
Protected “A”
3
Constable Folk transferred him to the detachment. While at the detachment, at
approximately 7:07 p.m., Constable Folk received direction from Corporal Dozois to
obtain fingernail clippings from Mr. Harms for the purpose of DNA analysis. At
7:50 p.m., Mr. Harms’ handcuffs were removed and he was provided an opportunity to
contact counsel.
[9] At trial, Mr. Harms was acquitted, as his stepdaughter admitted to lying about
parts of her testimony. The Crown essentially refused to put the stepdaughter’s
evidence before the jury, as she was an unreliable witness. Moreover, during the course
of the trial, the Court criticized Constable Folk’s conduct regarding Mr. Harms’ right to
counsel and his right to silence, and as a result, determined that certain statements
made by Mr. Harms were inadmissible.
Analysis
Allegation #1 Constable Folk denied Mr. Harms the right to contact
counsel.
Commission’s
decision
Constable Folk unreasonably denied Mr. Harms his right
to counsel by eliciting a non-cautioned statement from
him in the basement; however, while there was a delay,
Mr. Harms was not unreasonably denied his right to
contact counsel after being arrested.
Recommendation That Constable Folk be directed to read this report.
Explanation
[10] Section 10(b) of the Canadian Charter of Rights and Freedoms3
(Charter)
provides that “[e]veryone has the right on arrest or detention . . . to retain and instruct
counsel without delay and to be informed of that right . . . .”
[11] In his public complaint statement, Mr. Harms claimed that he spent four days in
cells and at no time was he afforded a call to a lawyer.
3 Canadian Charter of Rights and Freedoms, s 10, Part 1 of the Constitution Act, 1982, being Schedule B
to the Canada Act 1982 (UK), 1982, c 11.
Protected “A”
4
[12] In its report, the RCMP conceded that there was a delay in affording Mr. Harms
with an opportunity to contact legal counsel, but justified the delay based on the exigent
circumstances of needing to obtain his fingernail clippings for evidence.
[13] This issue was addressed at trial.4
In his ruling on the voir dire held to determine
the admissibility of three statements or utterances made by Mr. Harms to
Constable Folk, Mr. Justice Michalyshyn indicated the following:
At the end of the day, on the evidence it’s hard not to conclude that nearly from
the get-go in this investigation Constable Folk could have cared less about
Mr. Harms’ right to counsel or his right to silence.
[14] His Honour also found that Constable Folk had a cavalier attitude with respect to
the unexplained delays in facilitating Mr. Harms’ right to counsel and noted the RCMP
member’s selective note-taking. The Court determined that the statement Mr. Harms
made in the basement of his residence prior to his arrest was inadmissible based on a
violation of Mr. Harms’ right to counsel.5
[15] In excluding this statement from the evidence, the Court stated as follows:
Here the evidence is of an officer who simply moved forward with his
investigation, either in ignorance of or willful disregard for well-established
Charter standards. The deliberate nature of Constable Folk’s actions, in my view,
negate considerations of good faith, and it is conduct which the Court should and
does wish to distance itself from.
[16] The Court determined that two other statements were inadmissible but on
different grounds. These two statements were made by Mr. Harms at the detachment,
after he had indicated that he wished to exercise his right to contact counsel but before
being provided the opportunity to do so. The Court concluded that the statements were
excluded on the basis that their probative value was tenuous and their prejudicial effect
was substantial.6
[17] However, the Court fell short of excluding these two statements on the basis of a
section 10(b) Charter breach. The Court concluded, with considerable hesitation, that in
terms of the two statements made at the detachment, the unexplained delay in
facilitating Mr. Harms’ ability to contact a lawyer was not a violation of his right to
counsel. In making this finding, the Court noted that the delay that occurred after
Constable Folk was advised by Corporal Dozois to obtain Mr. Harms’ fingernail
4 R v Harms (2013), Court of Queen’s Bench of Alberta, Action No. 110584125Q1.
5 The Crown conceded that this statement was a breach of Mr. Harms’ section 10(b) Charter rights.
6 The Court cited R v Hunter, 2001 CanLII 5637 (ONCA).
Protected “A”
5
clippings, at 7:07 p.m., was reasonable to protect the collection of relevant evidence
(the potential DNA on his fingernail clippings).
[18] Accordingly, the suggestion in the RCMP’s report that the entire delay in
affording Mr. Harms the opportunity to contact a lawyer was attributable to the need to
collect his fingernail clippings is irreconcilable with the Court’s finding and the available
evidence provided to the Commission. In accordance with the finding at trial, there was
an unexplained delay essentially from the time when Mr. Harms indicated that he
wanted to speak with a lawyer shortly after 6:20 p.m. and 7:07 p.m., when
Constable Folk was directed by Corporal Dozois to keep Mr. Harms in handcuffs and
collect his fingernail clippings. In other words, the issue of the fingernail clippings did not
arise until approximately 40 minutes after Mr. Harms was arrested and provided with his
rights and police caution and indicated that he wanted to speak with a lawyer.
[19] While the Court determined that, in the circumstances, the approximately
40-minute delay in facilitating the right to counsel was not a violation of Mr. Harms’
section 10(b) Charter rights, the Commission notes that there was no reasonable
explanation for such a delay presented at trial. Moreover, there is no apparent
explanation in Constable Folk’s or Corporal Dozois’ police notes or in Constable Folk’s
general report for such a delay.
[20] The RCMP’s national arrest policy directs that, when making an arrest, an RCMP
member must promptly or as reasonably prudent, comply with sections 10(a) and (b) of
the Charter.7 The policy that was in effect at the time also indicated that a detainee’s
right to make initial contact with counsel “can be exercised when he/she is arrested or
later while in custody.”8 The RCMP’s arrest policy has since been updated and
provides, with respect to that provision, that a detainee’s right to make initial contact
with counsel “can be exercised when they are arrested, and as soon as practicable.”9
[21] The amended version of the policy is more aligned with the jurisprudence in this
area. In a 2018 decision, the Ontario Court of Appeal stated that if a detained person
exercises their right to counsel, the police must immediately provide the detainee with a
reasonable opportunity to speak with counsel.10 The Court also indicated that specific
circumstances, often related to police or public safety, or the preservation of evidence,
may justify some delay in providing access to counsel.11
7 RCMP Operational Manual, chap 18.1. “Arrest and Detention.”
8
Idem, s 4.6.
9
Idem, s 3.6. (amended 2018-06-01).
10 R v Rover, 2018 (ONCA) 745 at para 25.
11 Idem, para 26.
Protected “A”
6
[22] Finally, contrary to Mr. Harms’ contention that he was not afforded an opportunity
to contact a lawyer for the entire four days while in RCMP cells, the evidence reveals
that on the evening of his arrest, albeit after considerable delay, his handcuffs were
removed and he was placed in the cell block phone room for the purpose of calling a
lawyer.
[23] In light of the above, the Commission finds that Constable Folk denied Mr. Harms
his right to counsel by eliciting a statement from him in the basement without first
providing him with his section 10(b) Charter rights.
[24] However, given the finding at trial that the approximately 40-minute delay in
facilitating Mr. Harms’ right to counsel was not a breach of section 10(b) of the Charter,
the Commission is not prepared to find that Mr. Harms was unreasonably denied his
right to contact legal counsel after being arrested.
[25] The Commission recognizes that the events giving rise to this complaint occurred
over nine years ago. The complaint was made some time after the conclusion of the
trial, and the RCMP took almost three years to investigate it. Under these
circumstances, the Commission finds that recommending further action about the
conduct of the member would serve no useful purpose. The Commission is satisfied
that by reading its report, Constable Folk will be made aware of the Commission’s
concerns respecting his disregard for Mr. Harms’ right to counsel during their discussion
in the basement.
RCMP Commissioner’s Response
[26] The RCMP Commissioner agreed with the Commission’s finding and
recommendation. She directed that Constable Folk be made aware of the Commission’s
concerns about his disregard for Mr. Harms’ right to counsel by reading the
Commission’s report.
Allegation #2
Constable Folk provided false information when he
testified at trial that Mr. Harms’ ex-wife was not present
when Constable Folk arrived at the residence.
Commission’s
decision
The information before the Commission does not
support the allegation that Constable Folk intentionally
provided false information when he testified at trial.
Protected “A”
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Explanation
[27] The RCMP’s disposition of this allegation is generally consistent with the
investigation materials and the trial transcript. There is no dispute that Constable Folk
testified that, while he was talking to Mr. Harms’ stepdaughter at the residence, her
mother (Mr. Harms’ ex-wife) arrived home. This appears to have been an inadvertent
mistake on his part. There is no evidence to suggest that he intentionally mislead the
court.
[28] Moreover, in the Commission’s view, it is immaterial whether Mr. Harms’ ex-wife
was present when Constable Folk arrived at the residence or came home shortly
thereafter. Accordingly, the Commission finds that the information before the
Commission does not support the allegation that Constable Folk intentionally provided
false information when he testified at trial.
RCMP Commissioner’s Response
[29] The RCMP Commissioner agreed with the Commission’s finding.
Allegation #3 Constable Folk failed to conduct a proper investigation.
Commission’s
decision
Based on the available information, it was reasonable
for the RCMP to conclude that Constable Folk’s
investigation was not improper.
Explanation
[30] Mr. Harms contends that Constable Folk conducted an improper investigation
because:
the DNA analysis revealed no evidence
Mr. Harms’ stepdaughter had made similar accusations against other people and
then recanted
there was no documented evidence of bruising or choking as alleged by his
stepdaughter, and
the clothes worn by Mr. Harms and his stepdaughter were not seized for analysis
Protected “A”
8
[31] In its report, the RCMP addressed the issues raised by Mr. Harms, concluding
that Constable Folk was not negligent in his duty to investigate. In doing so, the RCMP
explained that essentially there were no meaningful results of the samples submitted for
forensic analysis. The RCMP also indicated that the investigation was largely based on
witness testimony (statements), corroborated by other evidence. Finally, the RCMP
noted that Mr. Harms was committed to stand trial after his preliminary inquiry, which
required the standard of there being some evidence upon which a reasonable jury
properly instructed could convict.
[32] Consistent with the available information,12 the Commission is satisfied that the
RCMP reasonably addressed the issues raised by Mr. Harms in terms of the
investigation. In particular, it is apparent that there was a miscommunication with the
forensic laboratory responsible for conducting the DNA analysis that may have
contributed in part to the delay in the testing of some of the samples. While this was
unfortunate, ultimately it did not have any impact on the outcome of the investigation.
Moreover, there is no suggestion in the evidence that this was intentional on the part of
the RCMP or “an act of fraud,” as Mr. Harms contends.13
[33] Furthermore, while inconsistencies in the evidence of Mr. Harms’ stepdaughter
arose during her testimony at trial, a review of her statement provided to
Corporal Dozois does not reveal any material discrepancies. Moreover, Mr. Harms’
ex-wife’s statement corroborated aspects of his stepdaughter’s statement relating to
events that happened directly after the incident. Notably, the unreliability of Mr. Harms’
stepdaughter only became evident under effective cross-examination by defence
counsel.
[34] Finally, contrary to Mr. Harms’ contention, there is nothing in the available
information to suggest that the subject RCMP members, including Constable Folk,
suffered from tunnel vision or failed to consider relevant evidence.
RCMP Commissioner’s Response
[35] The RCMP Commissioner agreed with the Commission’s finding.
12 The RCMP did not provide the criminal investigation operational file in the relevant materials, although
portions of it were included, such as the statements taken by Corporal Dozois of Mr. Harms’ stepdaughter
and his ex-wife.
13 Although Mr. Harms suggested that better training in the forensics side of policing be provided to RCMP
members, it is unclear how this would have changed the outcome of the investigation or the trial.
Protected “A”
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Allegation #4 Corporal Dozois threatened Mr. Harms.
Commission’s
decision
There is insufficient information to conclude that
Corporal Dozois threatened Mr. Harms.
Explanation
[36] Mr. Harms contends that after Corporal Dozois picked up the BB gun, he came
up to him with two fingers and “slammed” them off his forehead, saying “I ought just
shoot you in the fucking head right now.” In his public complaint statement, Mr. Harms
stated that he then lunged at Corporal Dozois, telling him, “How dare you threaten me in
my f-- own house.” Mr. Harms also stated that Constable Folk got between them, telling
Mr. Harms to relax and that they would straighten things out at the station.
[37] In its report, the RCMP indicated that, when asked about it by the
Commissioner’s delegate, Corporal Dozois and Constable Folk unequivocally denied
that this incident happened. The RCMP noted that there were two conflicting versions of
events and concluded, on a balance of probabilities, that the allegation was
unsupported, as the evidence did not establish whether the allegation occurred.
[38] This case is in essence a “he said/he said” situation with respect to what may
have transpired between the subject members and Mr. Harms. Notably,
Corporal Dozois’ notebook entries indicate that Constable Folk escorted Mr. Harms up
the stairs of the basement and out of the house. Corporal Dozois then recorded that he
retrieved the BB gun. This sequence of events as recorded in Corporal Dozois’
contemporaneous police notes is inconsistent with Mr. Harms’ version of events and
therefore tends to undermine the reliability of his account.
[39] In the absence of some reasonable information to confirm Mr. Harms’ account,
the Commission is unable to conclude, on a balance of probabilities, that his version is
more probable than the unequivocal denials of the subject members. Accordingly, the
Commission finds that there is insufficient information to conclude that Corporal Dozois
threatened Mr. Harms by saying that he should shoot him.
RCMP Commissioner’s Response
[40] The RCMP Commissioner agreed with the Commission’s finding.
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Allegation #5
Corporal Dozois failed to conduct a proper bail hearing
by providing unnecessary information to the justice.
Commission’s
decision
Corporal Dozois did not provide the justice with
unnecessary or false information at Mr. Harms’ bail
hearing.
Explanation
[41] Mr. Harms contends that Corporal Dozois, who was acting for the Crown as
prosecutor, stated during the bail hearing that Mr. Harms at one time had been
incarcerated and “admitted to murdering someone some years previously.” Mr. Harms
further contends that Corporal Dozois also stated that he could not tell that the BB gun
found at the house was fake.
[42] In its report, the RCMP noted that there was no information in terms of what
representations were made during Mr. Harms’ bail hearing. The RCMP indicated that
the “Criteria for Detention of Accused” form completed by Corporal Dozois identified
Mr. Harms’ criminal record, which includes convictions for escaping lawful custody,
failure to attend court, and attempted murder. The RCMP concluded that the information
provided during the bail hearing was correct and factual, and within the scope of
Corporal Dozois’ duties.
[43] As noted in the RCMP’s report, there is no transcript of the bail hearing.
Nonetheless, the Commission notes that section 518 of the Criminal Code of Canada
sets out the type of evidence that may be adduced at a bail hearing (also referred to as
a show cause hearing). Generally, section 518 attempts to inject some informality into
the bail hearing; hence, the strict rules of evidence that are engaged at criminal trial are
not necessarily applicable at a bail hearing. Specifically, the prosecutor is able to
introduce “any relevant evidence,” including the accused’s criminal record. Additionally,
the justice of the peace (or provincial court judge) is permitted to consider any evidence
relating to the need to ensure the safety or security of the victim or witnesses and base
their decision on evidence that the justice considers credible or trustworthy.
[44] Contrary to Mr. Harms’ contention that Corporal Dozois sabotaged Mr. Harms’
bail hearing and “abused his powers,” the Commission is satisfied that in accordance
with the provision of section 518 of the Criminal Code, it was reasonable for
Corporal Dozois to introduce into evidence Mr. Harms’ criminal record, including his
conviction for attempted murder. Moreover, given the scope of information permitted as
evidence at a bail hearing, it was not unreasonable for Corporal Dozois to indicate that
Mr. Harms possessed a replica handgun that was in fact a BB gun.
Protected “A”
11
[45] In terms of Mr. Harms’ claim that Corporal Dozois stated during the bail hearing
that Mr. Harms admitted to murdering someone, there is insufficient information to
conclude that Corporal Dozois knowingly provided false information during the bail
hearing.
[46] In light of the above, the Commission is satisfied that Corporal Dozois reasonably
conducted Mr. Harms’ bail hearing and did not provide the justice with unnecessary or
false information.
RCMP Commissioner’s Response
[47] The RCMP Commissioner agreed with the Commission’s finding.
Allegation #6
Constable MacDonald and Constable Parker were not
proactive in providing information when exposed to the
alleged lies of Constable Folk.
Commission’s
decision
Given the lack of information and detail, the RCMP
reasonably concluded that the allegation is
unsupported.
Explanation
[48] As noted in the RCMP’s report, Mr. Harms has provided no details or explanation
in terms of this allegation. His only reference in his public complaint statement to
Constables MacDonald and Parker is to state that during one of the trial days, the
RCMP members ate lunch in the cafeteria seated at the same table as Constable Folk
and Corporal Dozois.
[49] Given the lack of information and detail from Mr. Harms about the allegation, the
Commission is satisfied with the RCMP’s determination that the allegation is
unsupported.
RCMP Commissioner’s Response
[50] The RCMP Commissioner agreed with the Commission’s finding.
Protected “A”
12
Conclusion
[51] The Commission has finished reviewing this complaint and has concluded that it
is not satisfied with the RCMP’s report. Having considered the RCMP Commissioner’s
response, the Commission’s review is now complete.
Michelaine Lahaie
Chairperson
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