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

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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.

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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.

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[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).

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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.

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[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.

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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

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[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.

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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.

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[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.

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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