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Executive Summary

Background

On June 20, 2013, unusual levels of rainfall resulted in the normally sedate Highwood River becoming a rampaging torrent that uprooted trees and submerged cars and homes in southern Alberta's Town of High River. The extent of the flood and the damage it caused were unprecedented.

Over the next seven days, countless acts of heroism and humanitarianism were witnessed from volunteers, firefighters and first responders, including 380 Canadian Forces personnel and hundreds of local, provincial and national Royal Canadian Mounted Police (RCMP) members, all working long hours to evacuate the town and search for, and rescue, hundreds of stranded residents. An estimated 600 people were rescued by helicopter and 200 were saved using boats, trucks and farm vehicles. However, as the crisis wore on, the conduct of RCMP members was questioned, as residents were informed that during the evacuation, their homes were forcibly entered, and in some cases windows were broken, doors were kicked in and firearms were taken.

Public Interest Investigation

By the first week of July, it was apparent that an external, independent examination of RCMP members' actions was required. Consequently, on July 5, 2013, the Chair of the Commission for Public Complaints Against the RCMP (now the Civilian Review and Complaints Commission for the RCMP ,Footnote 1 hereafter referred to as the “Commission”) initiated a public interest investigation into the conduct of members of the RCMP during the evacuation of High River. The Commission's investigation set out to review the actions and decisions of RCMP members and focused on whether RCMP members complied with applicable laws, policies, procedures, training and guidelines with respect to the entry into private residences during the evacuation and the seizure of firearms from those residences. The Commission's investigation also reviewed whether the RCMP 's internal policies, procedures and guidelines are adequate.

Following an extensive investigation involving the review of over 10,000 pages of documents, emails, notes and seizure logs; more than 1,000 images and 50 videos; RCMP operational and administrative policies; applicable laws and court decisions; and after interviewing dozens of individuals, the Commission has made 52 findings and 10 recommendations.

In summary, RCMP members were authorized as part of a declared state of emergency to enter High River buildings and with the exception of a relatively small number of homes, the force used to enter was necessary to comply with directions from emergency management officials. However, once inside the homes, RCMP members discovered firearms and contraband and, with insufficient supervision and guidance by senior RCMP members or any judicial oversight, performed warrantless searches and seizures of firearms from some of the evacuated homes. In addition, the lack of a public communication strategy resulted in the public's mistrust of the words and actions of RCMP members and set in motion a domino effect of challenges for the RCMP .

Context

The Commission would be remiss in failing to acknowledge that the emergency personnel, including RCMP members, did a remarkable job responding to this extraordinary natural disaster in the initial days.

However, when considering the community's reaction to the actions of the RCMP in the days that followed the flood, it is evident that there were failings from which lessons can be learned. The remedial focus of the Commission's mandate allows for the identification of any failings as an opportunity to enhance the RCMP 's accountability, strengthen its relationship with the communities it serves, and assist in reclaiming the trust of those residents who have had their confidence in the RCMP shaken.

State of Emergency

On the first day of the flood, the Town of High River declared a state of emergency pursuant to Alberta's Emergency Management ActFootnote 2 (EMA), and the Town's Emergency Operations Centre (EOC) prepared emergency plans requiring the RCMP 's input and participation for 1) rescue and recovery, 2) security, 3) search, and 4) re-entry efforts. These four plans were prepared and their execution was ordered by local and provincial officials using emergency powers in the EMA. Pursuant to paragraph 19(1)(h), the EMA authorized RCMP members to enter any building without a warrant in the course of carrying out the EOC 's emergency plans.

The EOC directed RCMP members to enter and search all town residences, including using force for the purpose of saving lives. Subsequently, the EOC issued additional orders and directions for RCMP members to enter (and re-enter) homes to facilitate pet rescues and health and safety inspections. In the process of carrying out these emergency plans, RCMP members entered 4,666 homes, and forced entries into more than 754 of those homes. The results of these searches were the discovery of approximately 38 people in need of help, the rescue of 700 pets, and the facilitation of provincial health and safety inspections, which deemed half of the homes inspected in High River as uninhabitable.

While authorized to enter homes by the EOC , RCMP members, acting on their own initiative, discovered or searched for firearms and contraband, resulting in the removal of 609 firearms from 105 homes, the seizure of marijuana plants from 5 homes, and prohibited weapons from 1 house.

Decision to Enter and Search Homes

The rapidity of the flood caught many by surprise. As residents quickly fled their homes, RCMP members began receiving reports that some residents were being swept away by flood waters, or were trapped in their homes and cars as large parts of the town were becoming impassable. By late morning on the first day of the flood, the EOC struggled with challenges of its own, as its location was flooded, which hampered its ability to direct the emergency efforts. At the same time, the RCMP 's dedicated communication system was inoperable, along with the majority of the town's voice and data services provided by landlines and cell towers. Those needing help were unable to connect with emergency services. In the late afternoon of that first day of flooding, the EOC ordered the mandatory evacuation of the entire town of High River.

On the morning of the second day of the flood, the EOC met with the RCMP Incident Commander, Superintendent Frank Smart, who recommended a “systematic door-to-door search of every residence in the town.” With communication lines down, the concern was that no area of town could be considered cleared, as there was no means of knowing if anyone was trapped in a home or incapacitated without physically checking inside. The outcome of the EOC meeting was clear: time was of the essence and protection of life was the priority. The Director of the EOC , Mr. Ross Shapka, confirmed that the aim of the first round of the house-to-house searches was to ensure “life safety.” The EOC therefore made the decision to order the “search of all town residences to ensure that people had been evacuated.”

Means and Methods Used to Enter and Search Homes

In the afternoon of the second day of the flood, as the preparation of the search plan was in the final stages, some RCMP members sought clarification on the measures to be used for their “door-to-door” efforts if nobody answered the door, particularly in neighbourhoods where the water level was lower. Superintendent Smart instructed RCMP members to use as much force as necessary (to enter every building), but as little as possible to mitigate damage.

To add to the already complex operating environment, along with the heavy burden to save lives, many of the team members had never been in High River. RCMP members were sent out in boats in search of flooded neighbourhoods they had never seen before, looking for submerged street signs.

In the worst-hit neighbourhoods, search teams had to contend with live wires, gas leaks or unstable ground before entering homes. Some homes were unlocked, others were accessible through open garage doors, while others required the breaking of windows and doors, and when made available on teams, a dozen locksmiths unlocked or drilled locks. In some cases, the teams were able to enter through damaged entrances caused by the intensity of the flood waters and large debris. The nature of the emergency response made speed a priority at the expense of damage done to the exterior and interior of homes.

However, even though the RCMP members were directed to enter every residence, in the neighbourhoods located in the “high and dry” areas—approximately five percent of the town—it appears that the force used to enter sometimes caused extensive damage to homes that had not been affected by the flood.

Search and Seizure of Firearms

Although the EMA granted RCMP members the lawful authority for warrantless entries in furtherance of the EOC 's emergency plans, these statutory powers did not authorize searches and seizures of firearms and contraband. RCMP Deputy Commissioner Dale McGowan indicated that for such seizures, RCMP members were relying on the Criminal Code.

Section 489 of the Criminal Code authorizes warrantless seizures of unsecured firearms or contraband discovered in “plain view.” Furthermore, section 489.1 of the Criminal Code requires that all items seized be reported to a justice.

In a number of instances, RCMP members seized firearms that were properly secured or that were not in plain view. In these cases the firearms were not removed with lawful authority.

An alternate proposition advanced by the RCMP as a rationale for seizing the firearms was that members were also justified in seizing the unsecured firearms which they came across in plain view because they posed a threat to public safety. With the evacuation order in place, the RCMP was receiving reports of break-ins and thefts, and there were over 300 people who refused to evacuate, including one high-risk offender.

While RCMP members, acting on their own initiative and with little guidance, may have acted with public safety in mind, they nonetheless failed to comply with legal requirements concerning the seizure of firearms. Absent a warrant, RCMP members were obligated to report their seizures to a justice pursuant to section 489.1 of the Criminal Code. The judicial oversight component of seizures cannot be overstated in the context of police officers taking personal property from a home. Parliament has indicated its desire to regulate the warrantless seizure of personal property in a manner that ensures police accountability, transparency and judicial oversight. Had the RCMP reported their seizures to the court, it may have addressed many of the concerns and criticisms from residents, the media, and politicians.

Communications

The Commission's investigation revealed a number of failings related to communications, which had a direct impact on public perceptions of RCMP performance during the crisis and undermined public confidence in the RCMP .

First and foremost, the RCMP leadership failed to adequately plan and resource external or public communications related to the High River flooding crisis. Overall, responsibility for communications lay with the High River EOC . But the RCMP 's failure to plan and prepare for external communications during the emergency, and above all the insufficient importance attached by the RCMP to public communications, worked to the detriment of RCMP operations and the Force's reputation. This was a particular concern with respect to the forced entries into homes and the seizures of firearms.

RCMP ineffectiveness in external communications was the direct result of inadequate policies and procedures and insufficient training on existing public communications policies and procedures. This led to poor planning and under-resourcing, with consequent confusion about roles and responsibilities, and poor coordination of public communications internally and with partners. For example, there was a failure to explain to the public why houses in the evacuation area were being entered, in some cases more than once, and why unsecured firearms were seized. Failure to explain these actions allowed speculation to develop.

The Commission recommends that the leadership of the RCMP 's Alberta Division (referred to as “K” Division) undertake a comprehensive review of its communications function to address the shortcomings exposed through the High River communications response, particularly in the areas of planning and resourcing. At the national level, the RCMP should develop a practical crisis communications handbook for use in emergency operations. The RCMP should also take measures to ensure that emergency management policies and procedures support the close integration of external communications and operations.

Emergency Response Policy

Given the lack of supervisory guidance surrounding the entries, searches and seizures, RCMP policies and procedures did not adequately present legal authorities for RCMP members to 1) enforce evacuation orders, including when it may be appropriate to arrest a person who fails to leave an evacuation area, and 2) enter homes and conduct searches and seizures when acting under provincial emergency management powers or pursuant to the common law powers of police.

The Commission recommends as a result that the RCMP review its emergency management policies at the national and divisional level, to ensure that they provide clear and comprehensive direction with respect to the legal authorities and duties of its members in emergency situations, taking into consideration the specific authorities and duties set forth in provincial or territorial legislation.

More specifically, given the lack of supervisory guidance noted in the Commission's review of the circumstances surrounding the RCMP 's seizure of firearms, the RCMP should create procedures or guidelines with respect to the seizure of firearms in disaster response situations like the High River flood.

Evacuation of RCMP Members

In addition, concerns arose regarding the failure of some RCMP members to evacuate. These members remained in their homes in the evacuation area in order to respond to the emergency. Allowing RCMP members to remain in their homes in an evacuation area risks creating the perception of favouritism toward RCMP members.

The Commission therefore recommends that RCMP policy or guidelines direct RCMP emergency responders whose homes are located in an evacuation zone to vacate their homes in accordance with evacuation orders.

Incident Command System

Implementation of the Incident Command System (ICS)Footnote 3 protocols indicate that during the activation phase of an emergency, staffing requirements must be determined and the necessary personnel with specific skills must be assigned accordingly. The implementation of the protocols was negatively affected by a lack of training. Thus, the Commission found that the RCMP has not fully implemented ICS into its emergency preparedness framework.

The Commission therefore recommends that the RCMP develop a policy making ICS the standard for emergency management situations and requiring ICS training for key positions, including Detachment Commanders, at a level commensurate with their responsibilities in an emergency response situation.

Note-Keeping

This report has noted the poor note-keeping of members involved in the response to the High River flood, which hampered the Commission's investigation. For instance, note-taking by search teams lacked consistency and sufficient detail. RCMP members also failed to maintain proper notebook entries during their escort of home inspection teams, in particular with respect to the use of force to gain entry into homes.

The Commission recommends that the RCMP develop national practice guidelines requiring the creation and use of neighbourhood inquiry sheets or similar documentation for emergency responders.

Conclusion

In the end, what should have been a story about heroic actions of countless front-line responders, including many RCMP members, turned out to be something far different for the RCMP .

The RCMP was evidently surprised and responded in a reactive manner to the anger of many High River residents over RCMP members having entered their homes and then seized firearms therefrom. Yet, the community's reaction was somewhat predictable, given that the sanctity of one's home from state interference is a deeply rooted legal principle. This principle was outlined eloquently by British statesman William Pitt in a 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.Footnote 4

Various factors identified in this report led to the negative outcome experienced by the RCMP , including a lack of leadership in terms of supervisory guidance and clear policy direction, as well as a failure to articulate and then communicate in a transparent and timely manner the reasons and legal justification for the RCMP 's actions.

The RCMP will inevitably be involved in disaster response efforts in the future, performing the dual roles observed in High River of law enforcement agency and emergency responder. In order to maintain the public's confidence in the RCMP 's ability to perform these roles, the Commission's report recommends various measures to be taken by the RCMP to ensure that its members: fully understand their legal authorities and duties in the particular context of responding to a natural disaster; effectively communicate the nature of their actions and the rationale behind them, both internally and to the public; and supervise their execution in a manner that demonstrates leadership and accountability.

Introduction

The report is comprised of five parts:

Scope of public interest investigation; Background; Chronology of events; Analysis; and Conclusion

Part I outlines the Commission's mandate and the issues related to the RCMP 's actions which are reviewed in this report.

Parts Il and III offer a chronological summary of relevant events to provide the background necessary for a more detailed analysis of the RCMP 's conduct in Part IV, along with recommendations to address any shortcomings by the RCMP during their response to the High River flood.

This report was prepared following an extensive investigation that reviewed:

over 10,000 pages of documents, including situation reports;

meeting minutes from the Town, district and divisional Emergency Operations Centre (EOC);

RCMP members' notes; emails and electronic records; logs relating to items removed or seized from homes;

members' notes; emails and electronic records; logs relating to items removed or seized from homes; relevant RCMP operational and administrative policies;

operational and administrative policies; applicable legislation and case law; and

over 1,000 photographs and approximately 50 videos.

Additionally, in December 2013 and January 2014, Commission staff met with 68 High River residents and conducted 56 interviews. In March 2014, 8 additional interviews were conducted by an expert hired by the Commission to review the RCMP 's handling of external communications. In April and June 2014, key RCMP members and the Fire Chief for the Town of High River were interviewed.

The Commission also received a significant amount of information from the public, including documents released through other processes (such as requests for access to information) that found their way into the public realm, hundreds of emails and attachments and links to news articles, letters, statements and videos. The Commission also reviewed publicly sourced materials and research literature on the disaster response efforts of police organizations.

Part I: Scope of Public Interest Investigation

Pursuant to the authority granted to the Commission by subsections 45.37(1) and 45.43(1) of the Royal Canadian Mounted Police Act in force prior to November 28, 2014Footnote 5 ( RCMP Act), the Commission commenced a Chair-initiated complaint (Appendix A) and public interest investigation into the conduct of RCMP members involved in entering private residences and removing firearms following flooding in High River to determine:

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.

A summary of the Commission's 52 findings and 10 recommendations can be found in Appendix B.

The Commission is an independent agency of the federal government mandated to conduct objective examination of the evidence gathered during its investigation and, where appropriate, make recommendations to improve or correct conduct by RCMP members. The Commission is not mandated to review the actions of persons not employed by the RCMP , who may have played an important role in the emergency response. However, where warranted to better appreciate the operational context, the decisions and actions of non- RCMP officials are presented in this report.

The Commission’s investigation focused on whether statutory and common law authorities authorized or justified the RCMP ’s entry (including forced entry) into private property, the search of those properties, and the reasonableness of the conduct of RCMP members carrying out those searches. The Commission also analyzed the legal justification for, and reasonableness of, the removal of firearms and contraband (such as marijuana plants) in homes searched by the RCMP .

The Commission's investigation focused on whether statutory and common law authorities authorized or justified the RCMP 's entry (including forced entry) into private properties, the search of those properties, and the reasonableness of the conduct of RCMP members carrying out those searches. The Commission also analyzed the legal justification for, and reasonableness of, the removal of firearms and contraband (such as marijuana plants) in homes searched by the RCMP .

The Commission's review also expanded to include additional matters which are interconnected with the three overarching issues under review. The first concerns the effectiveness of the RCMP 's external communications during the flood, including whether communication activities were adequately planned and properly resourced, whether roles and responsibilities were clearly defined, and whether the RCMP 's policies and procedures with respect to external communications in emergency operations were adequate. The second concerns the failure by some RCMP members who resided in the High River evacuation zone to evacuate their homes at the same time as other residents. The third concerns the implementation of the Incident Command System during the flood, including the lack of training of Incident Commanders with respect to this system.

The Commission has considered all of the above issues, materials and insights provided therein. As contemplated by subsections 45.76(1) and 45.76(3) of the RCMP Act, the Commission's report is prepared ad interim and requires the RCMP Commissioner to review and respond before a final report is submitted to the Minister.

Part II: Background

On the afternoon of June 19, 2013, Alberta's environment ministry issued a routine flood watch advisory for parts of southern Alberta, including the town of High River. Located in the Bow River Basin and east of the Canadian Rockies, High River has experienced a number of floods since the town was founded in 1901, including severe floods in 1995 and 2005. The town covers 14 square kilometres with a population of 13,000 residents in 5,200 homes. It has two access routes, Highway 2 and Highway 23, with the Highwood River winding through the middle of town.

In the two days prior to June 19, the semi-arid region around High River had absorbed 200 millimetres of rainfall (10 times the average summer rainfall for the area). A confluence of weather systems that formed overnight on June 19 led to as much as 345 millimetresFootnote 6 of additional rainfall over the next 60 hours. The resulting flooding was the most destructive and expensive disaster in Canadian history, with losses estimated at $6 billion.Footnote 7

By 8:45 a.m. on June 20, the Highwood River (which normally flowed through the middle of the town at 30–70 cubic metres per second [cms])Footnote 8 had become a rampaging torrent, uprooting trees and submerging cars and homes. Rainfall coming down the slopes of the Rockies funneled into the Highwood River at a speed of 1,500–1,800 cms.Footnote 9 Local authorities declared a state of emergency on June 20 at 7:04 a.m. Provincial authorities declared a state of emergency for the region on June 27, which ended almost three months later on September 20.

As the flow of water intensified, causing flash floods and mudslides, the water levels rose to overflow the berms protecting the town, and the flood advisory for the town was raised to the highest level at 8:45 a.m., more than two hours after the flood waters had hit the town.

Over the next 48 hours, firefighters and first responders, including 380 Canadian Forces personnel, and hundreds of local, provincial and national RCMP members worked long hours to help evacuate the town and coordinate the air rescue of over 150 people on June 21. By the end of the emergency operation, an estimated 600 people were rescued by helicopter and 200 by boats, trucks and farm vehicles.

The Town of Canmore in the Southern Alberta District, and the City of Calgary (30 minutes north of High River) also activated emergency plans. In total, 32 locales declared a state of emergency in response to the flooding, stretching local and provincial emergency response resources.Footnote 10 Over 100,000 people were displaced throughout the flooded region of southern Alberta.

The High River EOC issued a series of evacuation orders culminating with a mandatory evacuation of the entire town. The Town directed the RCMP and other first responders to communicate and implement the order and assist the evacuees. The High River EOC 's emergency plans called for the RCMP to perform search and rescue operations, including a house-to-house search for people in need of assistance. As the evacuation order remained in place for more than a week (and in some parts of town, for several weeks), the RCMP 's focus and resources shifted from urgent search and rescue efforts to primarily security and secondarily to a support role to other agencies, such as escorts for pet rescues. For safety and security reasons, the EOC also tasked the RCMP to accompany home inspection teams with the technical expertise to ensure that homes were free of electrical, gas or biohazard dangers and were structurally sound. The EOC re-entry plan mandated that these inspections had to be completed before residents would be permitted to return home. During the course of their duties members seized firearms found in homes.

As the EOC 's evacuation order continued into a second week, the RCMP was criticized by residents, politicians and the media for forcibly entering homes, sometimes breaking windows and kicking in doors while searching 4,666 homes and for seizing firearms from 105 properties.

Spokesperson Carl Vallée from the Prime Minister's Office made the following statement on June 28:

We expect that any firearms taken will be returned to their owners as soon as possible. We believe the RCMP should focus on more important tasks such as protecting lives and private property.Footnote 11

On June 29, the tenth day of the flood, the anger of some residents was echoed by the Calgary Sun:

Let's start by assuming everything that was done wrong in High River came as a result of good intentions. An emergency of this magnitude calls for quick decisions, sleepless nights and dirty work. All of that is appreciated. That said, the entire handling of the situation in High River can best be described as a disaster. . . . But the most distressing part of this debacle comes from the RCMP —who seem to continuously sully their once-stellar reputation with scandal after scandal. The latest foible comes in the midst of the single biggest disaster to hit our area. With the town under mandatory evacuation, RCMP went into people's homes. According to the force, they were in looking for seniors or disabled who may not have had a chance to leave. That is admirable and by the scenes of waist-deep water, not an easy task. But once inside, police began confiscating guns. . . .Footnote 12

By June 30, waters had begun to recede and the worst of the flooding was over. What should have been a story about the actions of countless front-line responders—including many RCMP members—had turned into something quite different for the RCMP .

By the first week of July, it had become clear that the public interest required the Commission to embark on a comprehensive examination of RCMP actions. The necessary notifications were made, and on July 5 the Commission announced that it was initiating a complaint and public interest investigation into the matter. On the same day, RCMP Commissioner Bob Paulson publicly pledged his full support and cooperation of the RCMP .

Part III: Chronology of Events

Day 1 (June 20) – Morning

Day one was . . . fly-by-the-seat-of-your-pants, nothing like this has ever happened before. Sergeant Patricia Neely, Media Relations Officer

At 2:45 a.m. on June 20, Alberta's environment ministry issued a flood watch. Within 10 minutes, the town's Fire Chief, Mr. Len Zebedee, contacted the river forecaster and learned of the impending water flow. At 4:30 a.m., the Director of High River's Emergency Management, Mr. Ross Shapka, ordered into operation the Town's EOC . The Town now had less than four hours' notice to respond to the impending threat, an unusually short time compared to prior floods.

At 6:11 a.m., Mr. Shapka alerted the High River RCMP Detachment and asked them to report to the EOC . All off-duty RCMP detachment members were called in to support the Town's emergency response. During these initial hours, the EOC was located at the Town's offices. According to one of the first RCMP members to arrive, the environment was hectic:

[I]t was very unorganized. It was chaotic. Not everybody, not all players and all departments who needed to be there were there yet by the time that I got there. And I wasn't entirely sure what . . . I was supposed to be rolling out. Corporal Sharon Franks, High River RCMP Detachment Watch Commander

At 7:04 a.m., the Town declared a state of local emergency pursuant to the province's Emergency Management Act (EMA),Footnote 13 thereby triggering support obligations by the Alberta Emergency Management Authority and the RCMP . The RCMP 's support role included carrying out emergency plans as directed by the EOC , which exercised the Town's EMA authorities. In practical terms, the Town's EOC was responsible for macro-level decisions such as evacuation orders, including how long the order would be in force and for which parts of town.

Shortly after 7:30 a.m., Mr. Shapka called for the evacuation centre to be set up and issued the first of several evacuation orders. The rapidity of the flood caught many by surprise, and residents quickly abandoned their homes and possessions.

At 7:34 a.m., the RCMP began receiving reports that some residents were being swept away by flood waters or were trapped in their cars. At 8:35 a.m., the EOC received reports that areas of town were impassable, and Mr. Shapka directed the RCMP to begin evacuating streets in the northwest quadrant of town in coordination with Alberta Transportation.

At 9:13 a.m., the river could no longer be contained by its banks in the downtown area and began overflowing into the town's centre. By this time, RCMP members and emergency responders were fully deployed rescuing residents, many of whom were calling for assistance as they were trapped in their homes or cars. By 10:00 a.m., the RCMP was receiving a steady stream of calls for rescues, particularly related to elderly residents and children.

During this time, the Town's EOC struggled with challenges of its own. By approximately 10:30 a.m., the EOC location at the Town's offices was in danger of being flooded. The water had reached the parking lot and within an hour was almost knee-deep. At 11:28 a.m., rising flood waters immersed the basement of the Town's offices. The flow rate, three times that of the flood of 2008, was making bridges and highways unsafe. Mr. Shapka ordered the EOC to relocate to the Fire Hall, farther away from the river.Footnote 14 All of the RCMP vehicles were in use as RCMP members reported to different areas of the town warning residents and delivering stranded citizens to areas of safety.

By approximately 11:30 a.m., RCMP cars were no longer able to navigate the rising waters, which would at its peak cover 95 percent of the town. By late morning the RCMP had lost its dedicated communication system. The majority of the town's residents also lost voice and data services provided by landlines and cell towers. Those needing help were unable to connect with emergency services.

Day 1 (June 20) – Afternoon

By noon, individual volunteers began to assist overwhelmed emergency personnel with rescue efforts. One construction company provided large quarry trucks and other heavy machinery. First responders and volunteers also secured two farm combines and recruited drivers from a local dealership. Eventually, however, the rising waters disabled the engines of the construction and farm vehicles.

Shortly after 1:00 p.m., ground rescue efforts were further hampered by fast moving waters. The use of boats was becoming increasingly dangerous in the murky waters, full of fast-moving debris and submerged cars, with powerful cross currents at main intersections.

The notes taken by the EOC scribe reveal that, at 1:49 p.m. on Day 1, Mr. Shapka made what appears to be the first reference to “door-to-door” search and rescue efforts. The EOC was considering authorizing emergency personnel to enter homes and buildings as part of its emergency response plan. EOC notes refer to a “plan for the military to go door-to-door” to “save as many people as we can.” As the EOC rolled out its emergency plan, RCMP members and other personnel, including firefighters, military personnel, employees from the Alberta Emergency Management Authority and other provincial departments, electricity and gas company employees, were finding their way to the EOC .

As noted, the EOC was forced to change location three times on Day 1. Some EOC staff were forced to abandon their vehicles en route to the new locations and left behind many of the resources required to direct and command an effective emergency response, including maps, computers, and telecommunications devices.

By mid-afternoon, the EOC was operating without telephone, radio and Internet communications and was relegated to passing on information by word of mouth. Satellite phones and the services of amateur radio operators became available only later in the day. Telephone communications for High River were temporarily established in the town of Nanton (approximately 30 kilometres south of High River).

At 3:53 p.m., the EOC ordered mandatory evacuation for the entire town of High River.

Day 1 (June 20) – Evening

By evening, the Town had two elements of the emergency plan in place: rescue and security. During the evening, RCMP patrols were set up to provide a security perimeter and safeguard against looting within the evacuation zone. RCMP rescuers continued rescue operations.

With the flood waters claiming more ground, the RCMP started coordinating rescues by air. Early in the evening, the first of three Canadian Forces helicopters arrived to assist with the RCMP search and rescue efforts.

At 9:23 p.m., as the water continued to rise to within two blocks of its location in the Fire Hall, the EOC made the decision to move to a third location, a fire hall in the nearby town of Nanton. With highways closed and bridges and roads washed out or unsafe, the move took a lot of time. By 10:30 p.m., the decision was made to return the EOC to the Fire Hall in High River as a temporary measure. These constant moves hampered the emergency response.

The situation on Day 1 is aptly described by one RCMP member:

[The RCMP ] is trying to direct folks to where they need to go to get resources that they need. And by now we've almost lost half the force in the water because it's so fierce. I hear bubbles in one of the radios at one point. I can't reach anybody. I don't know where anybody is. And I hear one officer stuck on an island by herself. The bridge is washed out. So she's there. No one can get to her. There's no boats [sic] to get to her. We can't get enough boats. The boats aren't strong enough. The debris in the water is knocking the boats over. Homes are now starting to float. Boats are everywhere. It's beyond mayhem. Corporal Franks

Day 2 (June 21) – Morning

As Day 2 began, in addition to ongoing rescue efforts, the EOC was attempting to cope with failing infrastructure, including electricity, water and sewer services, spotty communication systems, blocked roads and washed out bridges. First responders also had to contend with unstable ground, house fires, gas leaks, and live electrical wires, including three explosions resulting from power outages and downed power lines. Throughout, the list of missing persons continued to grow (31 at the start of Day 2) and hundreds of residents still needed rescue and evacuation.

Shortly after 6:00 a.m., a meeting was held in the EOC at the High River Fire Hall. Acting RCMP incident (site) commander Superintendent Frank Smart attended on behalf of the RCMP . Echoing Mr. Shapka's comment of the day before and in consideration of the hazardous conditions experienced by RCMP members, Superintendent Smart suggested a “systematic door-to-door search of every residence in the town.” With communication lines down, Superintendent Smart stressed that no area of town could be considered cleared, as there was no means of knowing if anyone was trapped in a flooded basement or incapacitated without physically checking inside homes. Superintendent Smart recommended direct intervention to assist anyone unable to help themselves.

The outcome of the EOC meeting was clear: time was of the essence and protection of life was the priority. At approximately 6:30 a.m., as the directing authority of the EOC at the time, Mr. Zebedee authorized the preparation of a search plan involving door-to-door searches. “[T]he EOC ordered a search of all town residences to ensure that people had been evacuated.”Footnote 15

As of 9:00 a.m., marine rescue operations (coordinated and conducted primarily by firefighters) and air rescue operations (coordinated by the RCMP and conducted by Canadian Forces and private pilots) were in full swing. Three Canadian Forces helicopters were operational as were a number of private helicopters. By 4:03 p.m., 150 residents were rescued from rooftops. An estimated total of 600 residents were eventually rescued by air (with the last air rescue of trapped civilians taking place as late as July 5). The helicopters proved indispensable as rescuers on the ground continued to dodge hidden hazards such as live wires, gas leaks, large debris and sinkholes.

In addition to coordinating rescue operations, RCMP members also searched for the missing and dead. At 10:30 a.m. they were called in to recover a missing person presumed drowned. At 11:15 a.m. the RCMP recovered the first body. The second body was located nearby around noon.Footnote 16 A third body was discovered later the following day. The RCMP feared that the number of bodies could mount into the double digits.Footnote 17 Many reports were still coming in of people being swept into the torrent. In the face of continuing infrastructure and communication challenges, the search for the missing was time-consuming and labour-intensive.

Day 2 (June 21) – Afternoon

Pursuant to EOC directions, the RCMP prepared the search plan. At 2:39 p.m., RCMP members sought clarification on the measures to be used for their “door-to-door” efforts if nobody answered the door, particularly in neighbourhoods where the water level was lower. Superintendent Smart instructed RCMP members to use as much force as necessary (to enter the buildings), but as little as possible to mitigate damage. This instruction was communicated by Staff Sergeant Scott Fuller and Sergeant Rob Marsollier, both of whom were supervisors of the Special Tactical Operations (STO) unit,Footnote 18 to the various teams during pre-search briefings.

During their briefing, RCMP members received the following directions:

Search every house.

Record house number and whether empty or occupied.

Entry required to ensure life.

For occupied homes document who is in the home, who is missing and the names of the next of kin.

Searched homes to be marked with tape.

Don't go through deep water.

Secure homes upon leaving.

On loud hailer identify police.

Further complicating the operating environment, many of the team members had never before been in High River. With most of the EOC 's maps and materials lost on Day 1 of the flood, RCMP members used makeshift maps (in some cases obtained from a local pizza shop) to search unfamiliar flooded neighbourhoods by boat, looking through the water for street signs.

When the badly hit neighbourhoods were searched, the teams used various means to deal with risks and enter homes. Some homes were unlocked or accessible through open garage doors, while entry to others required breaking windows and doors. When available, locksmiths unlocked or drilled locks. In some cases, teams were able to enter easily through entrances already damaged by the flood waters and large debris.

While the house-to-house search and rescue operations continued, the RCMP members involved in external communications were not initially aware of the details of the “door-to-door” strategy, or the use of forced entry.

Day 2 (June 21) – Evening

While continuing the search for residents in need of help, some RCMP members on the search teams noticed unsecured firearms in the homes being searched. The first unsecured firearms were located at 6:39 p.m. when 50 firearms were found in a room on the second floor of a residence. Based on the Commission's review of the RCMP 's notes and communications, prior to this discovery the RCMP had not considered any plan of action or allocation of resources to secure any firearms discovered during searches.

Once firearms were discovered in a home, RCMP members either seized them or, in some cases, identified their location and follow-up teams returned to seize and catalogue the firearms, before storing them in a secure bay at the RCMP detachment in High River. Superintendent Smart designated Staff Sergeant Fuller as the lead to carry out the search plan. Staff Sergeant Fuller did not view the removal of the firearms as offence-related and therefore his teams did not investigate or consider charges with respect to any unsecured firearms. Later in the evening on Day 2, Staff Sergeant Fuller reported the firearms discoveries to Superintendent Smart and indicated that they were being treated as “found property.” Superintendent Smart was satisfied with this information and the RCMP members in the field continued the removal of unsecured firearms on that basis.

As night began and rescue operations turned into recovery operations, the RCMP redirected and prioritized resources in line with the EOC security plan. RCMP members were stationed at access points around the town to prevent people from entering. Throughout the evening on Day 2, the RCMP received reports about break-ins, including at a grocery store and pharmacy. Staff Sergeant Fuller also received reliable information that a group of youths known to have criminal backgrounds and carrying empty duffel bags had been seen attempting to circumvent the security lines. The potential for looting and criminal activity heightened RCMP concern about unsecured firearms in the evacuation zone.

Day 3 (June 22) – Morning

By Day 3, with much of the town still considered unsafe by the EOC , some residents were growing restless in temporary evacuation centres. During previous flood evacuations in High River, residents had been able to return to their homes by this time.

With the evacuation order still in place, RCMP search teams were still finding residents who did not wish to leave voluntarily and a small number of residents who needed help. RCMP members discovered elderly residents who needed assistance leaving their homes. In different parts of town, a gas utility truck and an ambulance drove into sinkholes. Other rescuers also required medical attention due to hazards encountered in the evacuation zone.

During the divisional EOC morning meeting in Edmonton, issues from the previous two days were tabled for discussion by the RCMP divisional emergency operations team. Reference was made to RCMP members damaging the doors of homes, particularly in areas that were minimally affected by the flood. Meanwhile in High River, as new RCMP members arrived to supplement the search teams, they continued to seek clarification on the need for entering homes not affected by the flood. Superintendent Smart indicated that all homes were to be entered.

On the morning of Day 3, both Mr. Shapka and Superintendent Smart conveyed their desire that the RCMP should continue house-to-house searches. They reiterated instructions to carry out the searches causing the least amount of damage necessary to enter. However, in many cases search teams were left to their own devices to implement the directions for conducting house-to-house searches. Members had limited tools to force entry and resorted to crowbars, sledge hammers or kicking in doors. Many of these entries caused significant damage to doors and windows of homes. Once inside, the search teams dragged in mud and debris as they searched through kitchens, living rooms and bedrooms for people in need of rescue. Once doors and windows were broken open or kicked in, teams had no practical means to secure the homes.

Staff Sergeant Fuller reported that:

[t]he only way to secure it at that point in time is to set up a tighter security perimeter around the community.

Day 3 (June 22) – Afternoon

By 4:00 p.m., two locksmiths were brought in to mitigate the damage being done by the RCMP entering and searching homes. By the end of the rescue and recovery stage of the operation, a dozen or more locksmiths had been engaged.

As homes were searched on Day 3, more firearms were discovered. Local RCMP detachment members were contacted to seize them, then secure and store the firearms at the RCMP detachment. The compiling of notes and maintaining chain of custody normally associated with property seizures were not followed with respect to the removal of firearms. During this time, the Town EOC was not made aware of the removal of firearms from homes. Mr. Zebedee stated that when the Town EOC became aware that firearms had been found in the homes, there was concern that, with the number of people remaining in the evacuation zone, breaking and entering into homes and the theft of firearms could “cause further problems down the road with those firearms being used for criminal purposes.” Among the 326 people still in the evacuation zone were several known criminals, including one high-risk offender. The RCMP was aware of these factors.

Day 4 (June 23)

On Day 4, the flood waters began to stabilize.

Mayor Emile Blokland issued a letter for the RCMP to deliver to residents wishing to return to, or still inside, the evacuation zone. The Mayor's letter described the complete loss of the town's critical infrastructure and sought the co-operation of residents in evacuating the town. The letter read as follows:

Dear Resident: The Town of High River is presently under a local state of emergency. As part of this, a MANDATORY evacuation order has been put in place. Although parts of the community were not directly affected by flood water, the town's entire critical infrastructure has been compromised. At this time, the Town's sewage and waste water systems are not functioning. We only have very limited fresh water capacity and a boil water advisory is in effect. There is no food, medicine, gas, or electricity. Any fire or medical services response is extremely limited. Travelling in the community and around the High River region is dangerous. Your continued presence is undermining the Town's ability to react to this emergency. While you may think that you are secure and are doing the right thing, your actions may result in a delay in allowing your neighbours, who respected the evacuation order, to return to their homes. This is a difficult situation for all of us and we are all in this together. It's important for you to evacuate the Town so that our emergency response people can make all our homes safe. We appeal and urge you to do the right thing.

While the state of emergency and the evacuation order remained in force, many residents were frustrated that they could not return, especially those who lived in the roughly five percent of the town not flooded. In addition, many of their homes had been forcibly entered and damaged during this time, which some perceived as wanton RCMP destruction.

Adding to the evacuees' frustration, 326 people who disobeyed the EOC evacuation order were not forced by the RCMP to leave their homes. On the other hand, RCMP members were seen diligently enforcing the EOC order by preventing people from returning to their homes. Some residents were caught attempting to re-enter the town and in one case, the RCMP arrested an individual who brandished a knife when challenged by RCMP members. Residents saw the RCMP 's enforcement of the evacuation order as inequitable. This perception was exacerbated when residents who disobeyed the evacuation order and communicated with those outside the evacuation zone stated that they were undertaking remedial work to their properties, and that they had witnessed RCMP teams entering homes and removing firearms. Frustration mounted at RCMP checkpoints around the town perimeter where residents directed their anger about the evacuation order at RCMP members.

Some residents were anxious about abandoned pets. The EOC turned its attention to this matter on Day 4 and requested that the RCMP assist authorized personnel to enter the evacuation zone to care for and rescue pets. By this time, pet rescue personnel had received hundreds of calls for assistance. Prior to Day 4, pet rescues were undertaken on an ad hoc basis by volunteers, which involved non-emergency personnel travelling unannounced into hazardous areas of the town. On behalf of the EOC , Mr. Shapka ordered that, for safety reasons, these rescues could no longer take place without RCMP escort.

Two RCMP members were initially assigned to the “pet rescue” teams, which became part of the EOC search plan. Later, up to eight RCMP members were assigned. By the end of the operation, an estimated 700 pets had been rescued and 90 percent were reunited with their owners. An unknown number of pets perished.

By the end of Day 4, more residents were beginning to disobey the EOC evacuation order by entering the evacuation zone to tend to their properties or retrieve pets.

Day 5 (June 24)

By late afternoon on Day 5, 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

Once the house-to-house search phase was completed, on behalf of the EOC , Mr. Shapka requested that the RCMP escort engineers and health inspectors to conduct health and safety inspections. These looked for possible biological and chemical hazards and at the structural integrity of buildings. The EOC required inspection for these threats before permitting residents to return home.

A rating system was used to designate whether homes were fit to inhabit, with the following results:

Code Description Number of Homes Green No impact, habitable 1,552 Yellow Minor impact, requires minor clean-up; possible minor repairs 538 Orange Damaged, requires extensive repairs or renovations; not immediatly habitable 2,171 Red Severely damaged, beyond economical repair; Uninhabitable 619

Reflecting the devastation wrought by the flood, over half the homes were assessed as uninhabitable by provincial authorities.

Day 6 (June 25)

By Day 6, the RCMP had checked a total of 4,666 buildings, using forced entry in 754 cases. RCMP resources were now focused on maintaining security in the town and assisting with recovery and re-entry into the evacuation zone. During this time, some residents learned that local RCMP members and firefighters, among other first responders, were re-entering the evacuation zones to tend to their own properties and that some of these homes had also been spared from search and forcible entry. On this date Superintendent Smart ordered RCMP members to comply with the evacuation order and vacate their homes.

Day 7 (June 26) and beyond

By Day 7, as telecommunications were coming back online, social media widely disseminated information that RCMP members were kicking in doors and taking residents' firearms. Traditional media also turned its attention to RCMP actions. Resident comments found their way onto a Facebook page calling for residents to take back the town and storm the barricades. RCMP received reports of a plan to overrun one of its checkpoints.

As High River residents were expressing their anger, residents of neighbouring towns were returning to their communities to begin the clean-up. High River residents became increasingly frustrated at the lack of communication concerning a timeline to return to their communities. The EOC continued to operate under the premise that the town's evacuation zone remained unsafe, as some homes remained accessible only to RCMP divers and a variety of hazards existed within the town, such as E. coli bacteria in the water, sinkholes, the compromised structural integrity of homes as well as possible threats from unresolved gas leaks and live electrical wires. But RCMP members at town checkpoints received little information to pass on to residents, creating additional friction between residents and the RCMP .

By Day 8 of the evacuation order, media reports picked up on what had become the “gun grab” news story:

[The RCMP ] seized a “substantial amount” of firearms from homes in the evacuated town of High River. . . . That news didn't sit well with a crowd of frustrated residents who had planned to breach a police checkpoint northwest of the town as an evacuation order stretched into its eighth day.Footnote 20

The RCMP attempted to respond to the intense media interest, but procedures for returning the firearms had not yet been completed and RCMP communicators had little relevant information to offer. In fact, RCMP operational commanders insisted on keeping some of the basic information out of the public domain.

By Day 10, when electricity had been restored to almost 95 percent of homes, the EOC lifted the evacuation order for parts of the town. By that time the RCMP had created a process to return firearms to their owners. The process involved a flexible policy that took into account the challenges of providing proper identification, documentation and transportation of restricted firearms.

By October, the RCMP had prepared a report which outlined certain firearms statistics. It reported that 609 firearms had been removed and tagged pursuant to the RCMP entries. In addition, 452 firearms had been returned, 107 had been voluntarily turned in for destruction, and the balance remained unclaimed with the detachment.

As of December 2014, the RCMP had retained only 18 firearms. Two of these had been found in a park and nobody had come forward to acknowledge ownership. The remaining 16 were being held for safekeeping at the request of the firearms' owners.

Only one individual was charged under the Criminal CodeFootnote 21 for drug and prohibited weapons violations.

Part IV: Analysis

Before commencing the analysis of the issues raised in the Chair-initiated complaint, it is important to note that this report is limited to making findings into the conduct of the RCMP and its members. While the involvement of other individuals or agencies is commented upon in this report, this is done for contextual reasons only and not to evaluate the propriety of their decisions or actions.

Additionally, the volume of documents and materials submitted concerning the RCMP 's entries and searches of thousands of homes in High River does not allow for a granular review of each entry, search and seizure. Rather, these actions will be assessed globally. The exception to this approach will be the review of some specific cases which highlight key conduct issues.

A.The Entry of Private Residences During the Evacuation

The first issue for the Commission to review involves the entries of private residences within the evacuation zone. Access was sometimes facilitated by the use of force, which at times resulted in significant damage. Critical to the Commission's assessment will be the determination of whether the entries of homes conformed to the stated legal authorities, including whether the methods used to effect entry were reasonable in the circumstances.

This analysis focuses on the legal authorities underlying the RCMP 's response. Analysis of the training, policies, procedures and guidelines relating to the entry of homes will be performed in section C of this part.

Police Duties and Powers

In Canada, police are conferred with powers to enable them to carry out their lawful duties. Some powers are specifically set out in legislation while others are determined by the courts. These court-recognized powers are known as common law powers and are limited in scope.

The Supreme Court of Canada has not yet considered the extent of the police authority to enter private residences, without a warrant, during a natural disaster. However, the Court did consider the legality of warrantless entry into a home in response to a 911 telephone call, a similarly urgent situation. In that case, the Court determined that:

The accepted test for evaluating the common law powers and duties of the police was set out in Waterfield . . . If police conduct constitutes a prima facie interference with a person's liberty or property, the court must consider two questions: First, does the conduct fall within the general scope of any duty imposed by statute or recognized at common law; and second, does the conduct, albeit within the general scope of such a duty, involve an unjustifiable use of powers associated with the duty.Footnote 22

This test has come to be known in subsequent decisions as the Waterfield or ancillary powers doctrine. In answering the first question of the Waterfield test, the Court considered both common law and statutory duties. Ultimately, the Court focused on the police duty to protect life and property. It was decided that responding to a disconnected 911 call clearly engaged the duty to protect life.

When considering the second part of the Waterfield test, the Supreme Court considered whether there was a reasonable alternative to warrantless entry. In that case, the Court determined there was not and therefore upheld the warrantless entry in light of the urgent circumstances. In the end, the Court instructed that “[e]ach case will be considered in its own context, keeping in mind all of the surrounding circumstances.”Footnote 23

Does the conduct fall within the general scope of any duty imposed by statute or recognized at common law?

The fact that RCMP members entered private residences during the flood response is not in dispute. The manner with which the members accomplished this task will be discussed later in this analysis. First, it is necessary to examine the reasons upon which these actions were based. During the course of the Commission's investigation, RCMP members cited two reasons to justify their entry into private residences during the flood response: the Alberta Emergency Management ActFootnote 24 (EMA), and their common law duty to protect life. Each of these will be assessed in turn.

Subsection 1(f) of the EMA defines an emergency as “an event that requires prompt co-ordination of action or special regulation of persons or property to protect the safety, health or welfare of people or to limit damage to property . . . .” The facts set forth in Part III of this report establish that an emergency existed within the town of High River beginning on June 20 and for many days thereafter.

The coordination of the emergency response in High River was based first and foremost on the regime set forth in the EMA. Pursuant to the EMA, two types of emergencies may be declared: a provincial state of emergencyFootnote 25 or a state of local emergencyFootnote 26 where an emergency is believed to exist.

During such time as a state of local emergency is operative, which in this case was declared on June 20, the local authority, the Town of High River Council, is responsible for the direction and control of the emergency response.Footnote 27 Pursuant to subsections 11.2(1) and (2) of the EMA, the Town's emergency management agency is designated as the agent for exercising the Town's emergency powers while the director of that agency is responsible for directing and coordinating the Town's emergency response.Footnote 28

At the relevant time, Mr. Shapka was the director of the Town's emergency management agency.Footnote 29 As such, he was responsible for the implementation of all emergency plans.

The powers which may be exercised during a state of emergency are prescribed in subsection 19(1) of the EMA, and include the following:

19(1) On the making of the declaration and for the duration of the state of emergency, the Minister may do all acts and take all necessary proceedings including the following: put into operation an emergency plan or program;

. . .

(d) authorize or require any qualified person to render aid of a type the person is qualified to provide;

(e) control or prohibit travel ...

. . .

(g) cause the evacuation of persons . . .

(h) authorize the entry into any building or on any land, without warrant, by any person in the course of implementing an emergency plan or program . . . .

[Emphasis added]

By virtue of the authority granted in paragraph 24(1)(b),Footnote 30 these powers are conferred upon the local authority during a declared state of local emergency.

The authorization for any person to enter any building without a warrant as part of an emergency plan pursuant to paragraph 19(1)(h) of the EMA is key to this analysis. For this warrantless entry provision in the EMA to authorize the entry into buildings by RCMP members during the flood response, there are three prerequisites: 1) a declared emergency in High River, 2) the preparation of an emergency plan which authorizes entry into buildings, and 3) that the RCMP was instructed to carry out such a plan.

Four emergency plans were prepared and acted upon during the emergency response. These included the rescue and recovery plan, the security plan, the search plan and the re-entry plan.

The rescue and recovery plan was the first plan put in force by Mr. Shapka and dealt with the land, water and air rescues which took place over the first two days of the flood, as well as the continuing efforts to locate victims who may have succumbed to the flood waters. These latter efforts included the work of cadaver dogs and dive teams. The security plan was implemented late on the first day and included the establishment of checkpoints to control entry into the town. This plan continued until the evacuation order was lifted and residents were permitted to return to their homes. The search plan was implemented on the second day and contemplated both searches for people and, later, pets. The search for people was completed on June 24 and the pet rescue portion ended on July 2. The re-entry plan providing for the return of residents to their homes commenced on the first day of the flood and included home inspections to ensure that private residences were safe for occupancy. This plan was comprehensive and dealt with the logistics of the return to town as well as repairs to the town's critical infrastructure.

These plans were modified from time to time, as circumstances warranted.

The Commission's investigation revealed that entries of homes were authorized pursuant to the search plan, initially for searches for people in distress and later for the retrieval of pets. Additionally, the re-entry plan authorized multi-specialty teams, including RCMP escorts, to enter homes to facilitate inspections to assess the electrical, gas, plumbing, and structural integrity of buildings and other health hazards, before permitting the return of occupants. These plans, implemented by Mr. Shapka pursuant to the authority vested in him by the EMA, amount to the statutory authority relied upon by the RCMP , as noted above.

The EMA delineates the powers of the Minister or local authority, as the case may be, during either a declared provincial state of emergency or state of local emergency. From the time of the declaration of the state of local emergency, the Town Council had the direct authority to coordinate the emergency response, while the RCMP occupied a support role. The direct control of the emergency response rested with the Director of the EOC . This situation continued after the province declared a state of emergency for the region on June 27. From a practical viewpoint this structure did not change since the emergency response continued to be managed out of the EOC once the province assumed control. The execution of the same four emergency plans, and the commensurate direction to the RCMP , continued unchanged. Most of the positions remained unchanged as well, since provincial agents were already involved in the emergency response, as Alberta Emergency Management Authority personnel were embedded in the EOC .Footnote 31

In determining whether the RCMP 's role resulted in any duty which would have permitted the exercise of police powers, it is first necessary to consider the applicable provincial and federal legislation. In Alberta, the Police Act, RSA 2000, c P-17, section 38 outlines the authority, duties and jurisdiction of police officers. Members of the RCMP are “police officers” within the meaning of the Act. Similarly, section 18 of the RCMP Act sets out the duties of members. Both of these statutes articulate a general police duty to carry out their functions as peace officers.

Simultaneously, while taking part in the emergency response to the High River flood under the direction of the Town and Mr. Shapka, the members were acting pursuant to a duty derived from the EMA.

Finding No. 1: Pursuant to the Alberta Emergency Management Act, High River was under a state of local emergency on June 20 and later a provincial state of emergency on June 27.

Finding No. 2: Pursuant to the Emergency Management Act, the Emergency Operations Centre prepared and authorized the implementation of four emergency plans requiring rescue and recovery, security, search and re-entry of residences.

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. 4: RCMP members participating in the emergency response were acting as peace officers pursuant to the authorities and duties derived from the Alberta Police Act and the RCMP Act.

Finding No. 5: RCMP members participating in the emergency response were acting pursuant to a duty derived from the Emergency Management Act.

In addition to the statutory authorities and duties conferred on RCMP members by the Police Act, the RCMP Act and the EMA, the common law is also relevant in considering their actions as peace officers. The common law is made up of legal precedents written by judges that are binding on police actions. Unlike legislation, however, the common law is not passed by the legislature but is developed over many years by custom and judicial precedent.

Under the common law, the courts have long demonstrated a respect for freedom from trespass on private property by police, and have strongly resisted state interference with the right to privacy inside the home. As a result, the general rule is that the police require a warrant to enter a home, to search private property or to seize any items resulting from a search. Absent legislative or common law authority or judicial authorization, any interference with private property by state authorities may be considered unreasonable.

Ian Scott and Joseph Martino explain the common law as it relates to search and seizure in a text written with law enforcement officials in mind. In chapter 3 of Salhany's Police Manual of Arrest, Seizure and Interrogation,Footnote 32 they describe the common law's treatment of search and seizure as follows:

The right to search a person's home or premises is regarded as an extraordinary remedy that may be exercised only where there is a clear and unambiguous statutory provision permitting it. Unless the police are in possession of a warrant or other specific authority, they have no right to enter private premises and remain there against the occupant's wishes. If they do so, then the occupier is entitled to regard them as trespassers . . . . On the other hand, the common law does recognize that the occupier of a dwelling gives an implied licence to any member of the public, including a peace officer, on legitimate business to come on to the property. That licence, however, ends at the doorstep of the dwelling . . . . [Citations omitted]

Although this description is considered the general rule against warrantless police actions inside a home, there is also a recognized exception to this general rule. Police may undertake warrantless actions in urgent or emergency-like circumstances, which are often referred to by the courts as “exigent circumstances.” Such circumstances encompass emergency situations where the authorities must act in circumstances where obtaining a warrant is not practicable.

The Alberta court in R v Cardinal 2001 ABPC 92 provides a helpful overview of the “exigent circumstances” exception:

56 None of the exceptional circumstances recognized by common law that allowed the police officers to enter without a warrant were applicable. The police were not in hot pursuit . . . . Nor were they attempting to capture possible culprits who had entered the house and continuing an offence . . . . There was no suspicion that anyone had weapons or posed a danger to the safety of others . . . . The right to privacy does not trump the safety of other members of the household; the police can enter to protect the life and safety of occupants of the household . . . . Other examples where entry might be allowed without a warrant or permission are emergencies such as fire, or some other impending disaster where the right to entry might be implied. [Citations omitted]

As noted earlier in this section, the Supreme Court of Canada has found that the common law duty to protect life may justify a warrantless entry into a home.Footnote 33 In the case of the High River emergency, the facts outlined in Part III of this report establish that the police were clearly engaged in the common law duty to protect life. The importance of that duty is undeniable. The British Columbia Court of Appeal has stated that “in matters involving the protection of life and physical safety, the police have no realistic choice but to err on the side of caution.”Footnote 34 Furthermore, in this context, the British Columbia Supreme Court has noted that “[t]he common law duty of a police officer to protect life and preserve public safety is a heavy one. The consequences of failing to act can be tragic.”Footnote 35 Indeed, just last year, a majority of the Supreme Court of Canada stated: “[T]he execution of the police duty to protect life and safety lies at the very core of the existence of the police as a social entity.”Footnote 36

The statements of the senior members on site reflected the focus on protecting life and an awareness of the potential tragic consequences of a failure to act. Superintendent Smart stated:

[O]ur concern was perhaps we had people trapped in the house that couldn't get out, whether they be elderly or incapacitated in some way. Obviously we'd had two deceased at that point in time and I think that the mere fact that . . . our expectation quite honestly ... was that we were expecting a lot more fatalities. . . . [W]e were expecting a lot more people's lives to be in danger if you will.

Inspector Tony Hamori, also an Incident Commander during the search phase, stated:

[W]hen I heard that we were going door to door searching every home I thought it was very reasonable, given the circumstances. And as I mentioned before, the thought of having left one person behind certainly in terms of my cementing our authority to do what we were doing, sealed it for me that any other circumstance was far less critical in terms of the criticism we would receive than having left that one person behind . . . .

The circumstances created by the flood, at least in the early stages, objectively support a finding that RCMP members responding to the flood were operating in conditions which brought the common law duty to protect life into play. The preceding quotes establish that the responding members were alive to that duty.

Finding No. 6: RCMP members participating in the emergency response were under a common law duty to protect life and preserve public safety.

Does the conduct, albeit within the general scope of a statutory or common law duty, involve an unjustifiable use of powers associated with the duty?

Having found that the first part of the Waterfield test was met (i.e. the conduct of the RCMP fell within the scope of a statutory duty under the EMA and the common law duty to protect life), it is necessary to assess whether the conduct, in this case the entry of homes by the police, amounted to a justifiable exercise of power. In order to do so, the circumstances facing the police and the goals their actions were meant to achieve—in other words the importance of their purpose—must be weighed.

During the flood response, RCMP members entered homes for a variety of reasons.

Initial Entries

To protect life;

Secondary Entries

To retrieve personal belongings for residents; To escort pet rescue teams; To escort home inspection teams; and To seize unsecured firearms.

In determining the reasonableness of the entries and searches it is necessary to assess each of these entries independently. The period of each activity is also relevant, as the conditions and risks posed by the flood changed during the course of the response.

INITIAL ENTRIES

To protect life

a. Authorization to enter

The EOC scribe notes for June 21 reveal that shortly after 6:00 a.m. a planning meeting took place. Amongst others present were Mr. Zebedee, who at the time was in charge of the EOC , and Superintendent Smart, who was the RCMP Incident Commander. The EOC scribe notes record that Superintendent Smart advocated for a “systematic door-to-door search of every residence in the town.” At this meeting the RCMP maintained that it could not be determined with any degree of certainty that any area of town had been searched and deemed to be clear. During the rescue operation, rescue personnel had reacted to people they found in need of assistance and had knocked on some doors and called out to find people in distress. They had not, however, entered any homes to search for people. The EOC scribe notes record that Mr. Zebedee authorized the preparation of the search plan during this meeting which contemplated entries of homes for this purpose.

Superintendent Smart stated that he left the planning meeting with the belief that the Town had exercised its power under the EMA to direct entry of the homes. This is what he consistently told his subordinates thereafter. However, when questioned about the specifics of the meeting, Superintendent Smart stated that he could not recall any discussion at that meeting about forced entries into homes. Similarly, Mr. Zebedee had no such recollection.

Mr. Shapka was not interviewed during the course of this investigation. He was approached about providing a statement and agreed to do so. Unfortunately, after repeated attempts to schedule an interview, including both by telephone and in writing, the Commission was unable to speak with him. However, Mr. Shapka's comments are part of the public record in the form of a radio interview given on June 23, 2014.

During that interview, he was quite clear in stating that the searches were carried out at the direction of the EOC . He confirmed that the aim of the first round of searches was to ensure “life safety” and that the search was to be the number one priority. Based upon those plans, Mr. Shapka stated that he made the decision to order the search of homes to locate people and he stood by that decision. This is consistent with the notes of those present at the 5:00 p.m. EOC operations briefing.

Moreover, a report released by the Town of High River on July 8, 2014, following a review of the emergency response to the 2013 flood indicates that on June 21 at approximately 6:30 a.m., “the EOC ordered a search of all town residences to ensure that people had been evacuated.”Footnote 37

The evidentiary record supports the finding that, on June 21, the RCMP commenced warrantless entries pursuant to the EOC 's order. The order was a component of the EOC 's emergency plan, specifically the search plan. The actions of the RCMP for this purpose were authorized by paragraph 19(1)(h) of the EMA, which allows for “the entry into any building or on any land, without warrant, by any person in the course of implementing an emergency plan or program.” Although the EMA and the emergency plans do not specifically provide for the means used to effect “entry,” it was implicit that forcible entry would be required in the context of the emergency circumstances. In fact, this was an issue that Mr. Shapka had turned his mind to, as he stated that the EOC had asked the RCMP “to do as little damage as possible going into the homes.”

Forcible entries by RCMP members were known to the EOC , and the EOC 's order to conduct the searches remained in place. The forcible entries were also referred to in the re-entry plan, which set out a compensation scheme for returning residents, given that some homes had sustained damage during “the initial searches to ensure everyone was out of the home and safe . . . .” The RCMP members were therefore complying with the EOC order to search each home, and it was reasonable to effect forced entries causing a minimum of damage necessary to carry out the emergency plan.

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.

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.

b. Purpose of entry

Systematic entries commenced in the late afternoon of June 21 and concluded on June 24, approximately 72 hours later. During that time, 4,666 buildings were entered and searched. Of these, 754 were forcibly entered. The searches began with those areas of town most accessible to rescuers and progressed from there. During the search the waters receded from the portions of town closest to the river. However, some neighbourhoods particularly in the east of town remained under water for weeks.

These factors provide important context for applying the legal analysis of the issues. As stipulated by the Supreme Court of Canada, “the interference with liberty must be necessary for carrying out the police duty and it must be reasonable.”Footnote 38 Specifically, the Court adopted the following list of factors to be weighed when assessing whether the police conduct was justifiable:

[T]he duty being performed, the extent to which some interference with individual liberty is necessitated in order to perform that duty, the importance of the performance of that duty to the public good, the liberty interfered with, and the nature and extent of the interference.Footnote 39

The Supreme Court of Canada has also warned that “in determining the boundaries of police powers, caution is required to ensure the proper balance between preventing excessive intrusions on an individual's liberty and privacy, and enabling the police to do what is reasonably necessary to perform their duties in protecting the public.”Footnote 40 [Emphasis added]

From the time of the first mandatory evacuation order on the morning of June 20 to that afternoon when the entire town was ordered evacuated, there was an increasing fear for the safety of lives for the residents of High River and the emergency responders coming to their aid. The situation was worsening and the environment was still quite chaotic.

Many hidden and overt risks remained in play over the ensuing days. The factors considered for the continuation of the evacuation order were summed up in Mayor Blokland's letter of June 23. That letter identified the complete loss of the town's critical infrastructure; water, sewage, electricity, gas and emergency response. It also identified the lack of food and medicine as well as the dangers associated with travel in town.

These same factors are relevant considerations to justify the entry of buildings by the police. All of the perils cited as reasons to evacuate potentially posed a threat to anyone who remained behind.

Some of the events which occurred in the days following the declaration of the evacuation order exemplified the risks existing within the evacuation zone and confronting residents who had been trapped by the flood.

As electrical crews worked to restore power in the town, one service reconnection occurred to a home in which a cooking appliance had been on when the outage hit. The appliance re-engaged and a fire ensued on June 21 which resulted in the fire department responding. That was one of two fires that day. On June 22 an Atco Gas truck and an ambulance drove into sinkholes. The ambulance had been responding to a medical emergency and was unable to proceed, which necessitated the dispatch of another unit. During the flood response, some rescuers fell into sinkholes, through porches or the floors of homes and required medical attention.

For days after the flood, the RCMP aided residents who requested assistance in leaving the town. These conditions spoke to the gravity of the situation.

As stated above, the duty to protect life is one judicially described as “heavy” and warranting “error on the side of caution.” Indeed, three people died as a result of the flood.

As people were required to evacuate, but could not do so without assistance in some cases (e.g. the use of helicopters for rescue), systematic searches of houses were warranted to look for injured people or people who may have perished. Given the large number of buildings to be searched and the reasonable belief that some people may be unable to respond to rescuers at the door, forcible entry was used.

The commonly stated concern of the members interviewed was that they would have no way of knowing if people in need of assistance, but who might be trapped or incapacitated, were present in a home unless the home was searched. As stated by Inspector Hamori, he did not consider it to be a viable option to conduct door knocks only to find out later that someone had been left behind.

Although not determinative of the issue, the results of the searches, which are discussed below, are of some assistance in assessing the reasonableness of the perceived risks which were cited in the rationale justifying the forced entries. These risks included the residual effects of the flood, which affected not only the people trapped in town but also those who were precluded from returning to their homes.

The full particulars of the police rescue of 38 people from their homes, including whether police were admitted entry to achieve those rescues, is not found in the written record. Poor record keeping made it difficult to determine the exact circumstances of these individual events. Search team scribes recorded little more than a citation that their team had “rescued” a certain number of people from its search zone. However, it is apparent from what records do exist that the overwhelming majority were people who had been unable or unwilling to evacuate the town and now required assistance to extricate themselves from their shared predicament.

RCMP records relating to “rescues” indicate that on June 24, nine people were rescued in dire circumstances. The record relating to two of those rescues reads as follows:

The two females were discovered when RCMP led teams were conducting door to door searches. At the time of their discovery, both women indicated that their situations were becoming quite desperate and one of the women appeared to be very distraught. One of the residents was rescued by a team in a boat while the other resident was resident [sic] was located by a team in a light armoured vehicle.

The forced entries did not result in the discovery of any deceased persons, but reportedly aided two people who were at serious risk. The written record did not contain any reference to these rescues. Staff Sergeant Fuller stated that there had been several cases where individuals who might not have been able to extricate themselves from the area or communicate their need for assistance had been rescued. At the time of his interview, he was only able to recall the details of one such rescue. In that case, he stated that an elderly gentleman in a wheelchair was located in his home three days into the flood. Staff Sergeant Fuller stated that the man had been without food, running water or sanitation for three days. This case was also referred to by firefighters. A similar case was also mentioned by first responders in which an elderly woman was found in need of assistance and unable to leave or call for help.

Although a breach of the sanctity of the home is a significant intrusion on the rights of property holders, the possibility of saving lives in ongoing dangerous circumstances may render this conduct reasonably necessary.

In the case at hand, the RCMP members were operating under the following conditions:

a declared state of local emergency;

a mandate given by the EOC to carry out searches of the entire town, searches which by their very nature called for speed;

to carry out searches of the entire town, searches which by their very nature called for speed; more than 300 people had refused to evacuate the town and could be in need of assistance;

residents outside the town attempted, sometimes successfully, to circumvent the security checkpoints and re-enter the town, potentially placing themselves in peril.

Having consideration for the conditions facing the RCMP search teams, the entry of buildings to search for people was a reasonable and justifiable response to the crisis facing the rescuers, who were under a duty to act to protect life.

Finding No. 9: Given the emergency circumstances which existed during the 72 hours of the searches to protect life, the entry of homes without a warrant by the RCMP was a justifiable use of police powers in furtherance of their common law duty to protect life.

c. The search protocol

As described above, the extent of common law powers is limited by the minimal intrusion required by the “reasonably necessary” test enunciated by the Supreme Court in Clayton.

Although having found that entry of dwelling houses was generally a valid exercise of police powers in this case, it is still necessary to consider certain aspects of those entries in order to further analyze the reasonableness of the police conduct. The damage caused by the forced entries, the securing of the residences upon exit and the buildings chosen are also relevant considerations.

i. Damage

Prior to the commencement of the building searches, the EOC requested that searches be carried out with the least amount of damage. Superintendent Smart provided similar instructions to Staff Sergeant Fuller, stating that searchers should use as much force as necessary to gain entry but the least amount possible. During pre-search briefings Staff Sergeant Fuller and Sergeant Marsollier conveyed this to all members of the search teams, the RCMP component of which were comprised of STO unit members.

Staff Sergeant Fuller explained that the nature of the emergency response made speed a priority, which necessitated a certain level of force being used to effect entry into homes.

Our only concern was to get to every house as fast as humanly possible to make sure nobody had fallen down a stairway or was in distress or had a heart attack or something like that. And now with no phone service and no neighbours around there was no means of getting any rescue. So it was basically get into this house, get onto the next one.

During the briefings of the search teams, members were directed to try to enter through unsecured doors. Indeed, on the second day of searching it had been determined that garage doors with electric openers could be opened manually and often residents had left the inner garage doors unlocked, which permitted easy access. In other instances entry was gained through windows.

In many cases the members were left to their own devices to gain entry. They had limited tools to force entry, often resorting to crow bars, sledge hammers or their feet. Many of these entries caused significant damage to homes. It should also be noted that many witnesses spoke at length of the damage caused inside their homes by the searchers as they proceeded through homes with mud-covered boots.

The eventual use of locksmiths to mitigate the damage which would result from otherwise forcing the doors or windows was a reasonable step by the RCMP to minimize adverse consequences to property owners. At the June 21, 9:00 p.m. EOC briefing there was a discussion about bringing in locksmiths. The first use of locksmiths was not until the afternoon of the next day; however, initially there were only two available. More were sought from neighbouring towns and from Calgary but were not enough to fully safeguard property, and they were not always successful in unlocking doors. Although a marked improvement, it was only a partial solution.

The damage caused by the forcible entries was one of the most controversial aspects of the emergency response. The devastating emotional impact of the damage to homes, as related in the interviews with the townspeople, cannot be overstated. The damage caused by the forced entries into homes, especially where homes were otherwise untouched by the flood, angered townspeople. While the impact of the damage may not have been known to RCMP members at the time, this impact is a relevant consideration in the assessment of whether the force used was reasonable.

The severity of these actions must, however, be weighed against the purpose for which the powers were exercised. Given that the aim of the searches was to protect life and that it was reasonable to believe that building searches were the only way to accomplish this task, a reasonable use of force was justified.

To contextualize this, the judicial pronouncements on the need for police to err on the side of caution when the protection of life is at the core of their actions must be considered. These court cases grant some latitude to the police in the exercise of their powers, essentially broadening the scope of actions which were reasonably available to them, keeping in mind that speed was of the essence and lives and safety were reasonably believed to be in peril. Under these circumstances, having full regard to the serious impact caused to many of the residents of High River both by the actions of the police and as a result of the flood itself, the actions of the RCMP in forcing entry into homes was justified.

Finding No. 10: Given the emergency circumstances which existed at the time, the reasonable use of force to enter buildings to protect life was justified.

ii. Securing doors upon exit

When tasking Staff Sergeant Fuller with executing the search plan, Superintendent Smart directed him to secure all buildings upon departure where possible. However, this appears to only have been done for homes with free access or where the entry caused only very limited damage. Securing homes upon exit is standard practice when police forces gain entry to a home whether with warrant or without and is designed to safeguard the property of the building owner or resident.

When Staff Sergeant Fuller was asked about the fact that many homes were left unsecured, he responded that he did not think it was possible to secure them all. He stated: “[I]f you have kicked the door in there's really no way to secure it after. The only way to secure it at this point in time is to set up a tighter security perimeter around the community.”

Staff Sergeant Fuller acknowledged that he did not take any steps to facilitate the securement of damaged homes, as he did not consider it to be practicable. From a logistics point of view he pointed out that the members did not have the equipment to secure the doors and this could have meant having to bring outside parties into the area with equipment. This measure could have necessitated the procurement of more boats and transport personnel. In either case this would have slowed the search teams down from their primary goal of saving lives.

In some cases the securing of homes resulted in damage during subsequent entries. This issue is addressed during the review of the entries for home inspections, below.

Finding No. 11: It was reasonable for the RCMP members to secure buildings after completing their search.

Finding No. 12: The decision not to bring in equipment and extra resources to secure buildings which had been damaged by entry was reasonable in the circumstances.

iii. Entry of all buildings

There is one other aspect of the warrantless entries that took place in the initial days which directly affects the reasonableness of the exercise of police powers. Although an estimated 95 percent of the town was under water at the peak of the flood, there were homes in a small number of neighbourhoods not directly impacted by the flood that were nonetheless entered. In reviewing RCMP member notes, there were clearly reservations expressed in having to enter homes in neighbourhoods that were not flooded. It does not appear from any of the information provided to the Commission that any of these homes were entered by the RCMP prior to the EOC specifically ordering that every house in High River be searched as part of the EOC 's emergency plans. Notes reveal that during the development of the search plan, RCMP members sought clarification as to the measures they should use to search the homes that did not appear to have been affected by the flood. Confusion still existed after the searches commenced, with members continuing to question the need to enter homes that were apparently unaffected by flood water. Indeed, late on June 21 searches in these areas were suspended to permit clarification of the issue.

The decision to enter all homes was a decision made by the EOC . In that regard the RCMP members were appropriately following the direction of the EOC . However, it is noted that RCMP supervisors had considered the reasons underlying the decision. In Staff Sergeant Fuller's opinion, the decision to search every home made sense, since the stress caused by the flood could have resulted in all manner of medical conditions. Similar concerns were raised by others involved in directing the searches, including a number of comments about a large number of senior citizens residing within the town.Footnote 41

Chief Superintendent Kevin Harrison, the Officer in Charge of the RCMP 's Southern Alberta District (SAD), provided a rationale for why it was necessary to look for people in all buildings. He stated that people who were in fear for their lives could reasonably be expected to seek refuge in any location that provided safety. If they managed to seek safety in an evacuated home for which the residents had registered as having evacuated, they might still be in need of assistance. According to him, this was the Town's major concern.

When asked to assess the different phases of the response plans he stated:

As far as the search plan goes, we were asked to execute the search plan and the reasoning at the time was sound and I think it's still sound: that there were still a number of people unaccounted for. By that time we had fatalities reported . . . .

When the need to conduct door to door searches was first discussed in the EOC , the concern raised by the RCMP was that they had no way of knowing whether people were in need of assistance. Although residents had been asked to report to an evacuation centre, this proved to be of limited assistance.

Staff Sergeant Doug Wattie, who was the Non-Commissioned Officer in Charge of the Major Crime Unit, stated that when attempting to locate missing persons, the team would attempt to contact the evacuation centres for information from the lists of registered people, as this was the fastest way to determine if people had actually safely evacuated the area and would provide the most up-to-date information. He indicated that this was met with mixed success, as some staff members at the centres were reluctant to provide personal information.

Staff Sergeant Wattie indicated that information sharing did take place over the ensuing days but it was a slow process that often required members to attend the individual evacuation centres.Footnote 42 Furthermore, the majority of residents never did report to the evacuation centres. These factors caused the RCMP to be concerned relying upon the information from the evacuation centres.

Notwithstanding that some homes appeared to be unaffected by the flood, it 