Who authorized RCMP to make warrantless entries into High River homes during the 2013 flood?

This précis examines one of the more recent claims from the RCMP - that they were carrying out warrantless searches for stranded people and pets under lawful direction given to them by the High River Emergency Operations Centre; likely the Director of the Town of High River Emergency Operation Centre (EOC) and/or the RCMP High River incident commander. Regardless of their long titles, these persons, and anyone else who was part of the Town’s EOC, must act within the law. On that basis, it turns out this latest justification for their action doesn’t quite hold water. A state of emergency was initially declared by the Town of High River on June 20, 2013. There was a later state of emergency declared by the Province and then another declaration by the Town. It is the first two declarations that were made during the time these house-to-house entires were made and firearms seized. The Town claims in its recently released Report that the Province made its own declaration of emergency on June 27 in order to give some much-needed rest to municipal officials who had been handling the local declaration of emergency. One would have thought it would have been enough for the Town to simply ask for help and that the Province would have sent more resources and personnel if those were required. If the Town’s Emergency Operation Centre (EOC) had the authority to delegate to the RCMP the power to kick down the doors to thousands of private homes, then surely the Town’s EOC had the authority to delegate to some provincial personnel the power to organize sandbags and backwash the filters at the sewage plant without requiring another declaration of emergency by the Province. Apparently, not. In any event, that issue is outside the scope of this brief paper and I turn to the narrower question of whether the High River EOC could legally delegate to the RCMP the power to make warrantless entry into High River homes, forcibly or otherwise. The Town Council of High River, like every other town and city in Alberta, had the power under Alberta’s Emergency Management Act to declare a state of local emergency. It’s powers under the Act were to be exercised by an “emergency management agency” which the town was required to establish under that Act. That agency seems to have been established in High River and is described in the Town’s Emergency Bylaw 3843/96. A copy of this Bylaw is also available online.

For the purposes of this editorial, let’s call that agency the High River “EOC”. The Town had also drafted and adopted a formal emergency plan, as it was required to do. According to local sources, the Municipal Emergency Management Plan (“MEMP”) that was in effect in High River in the summer of 2013 was this document. Do any of these legal instruments permit the Council or someone at the Town’s EOC to direct the RCMP to make warrantless searches, as the RCMP have claimed? On the basis of the documents I have reviewed and the plain wording of Alberta’s Emergency Management Act (“EMA”), I don’t believe so. In order to set aside other hurdles that would require deeper analysis, let us assume that the EMA authorized warrantless entries into residences although it only uses the word “building” rather than “residence” or “home”, and let us further assume that the Charter permits such a broad and intrusive interpretation that word, and we will further assume that Council was able to legitimately delegate such extraordinary power to a single unelected person, that apparently being the head bylaw enforcement officer (informally known as the local “dog catcher” in my youth but whom the RCMP refer to as “Director of the Town of High River Emergency Operation Centre”). Even with all those assumptions made, there are problems finding such authorization within the enabling bylaw and the accompanying MEMP. Bylaw 3843/96 plainly required that the authorization for warrantless entries must be “in the operation of” the MEMP or related plans and programs. The relevant passage of Section 12 of the Bylaw reads:

12. Subject to Section 15, when a state of local emergency is declared, the persons making the declaration may

........... (g) 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; ....... (k) authorize any persons at any time to exercise, in the operation of the Municipal Emergency Management Plan and related plans or programs, any power specified in Paragraphs (b) through (j) in relation to any part of the municipality affected by a declaration of a state of local emergency. [my emphasis]

Under the High River Bylaw, it appears that only one of these persons can authorize warrantless entries: (a) the person making the declaration, or (b) some other authorized person who is exercising such power “in the operation of” the Municipal Emergency Management Plan. Let’s examine each of those possibilities in turn. Local politicians made the declaration of a state of emergency. The RCMP has not claimed they were delegated warrantless entry powers by the Mayor or Councillors. In fact, in a letter to the Alberta Property Rights Advocate, the RCMP Commander of K Division (Alberta) denied that such direction came from politicians. The High River Town Council has not admitted to giving that direction. We can conclude that there is no claim that such authorization was given by the person(s) who made the declaration of emergency. Recently, the RCMP has claimed that their powers came from the High River EOC. That is corroborated. According to a report on SUN News of an interview with Mr. Ross Shapka, a bylaw officer in High River during the flood who was then-commander of the EOC, it was Shapka who gave the order to the RCMP to conduct searches of High River homes. Since Mr. Shapka does not appear to be the person who made the original declaration of a state of local emergency in High River then, by law, his direction had to be given “in the operation of the Municipal Emergency Management Plan and related plans or programs”. As we have seen, that condition was spelled out in Section 12 of Bylaw 3843/96. The only written “plan or program” we have been able to uncover is the MEMP referenced above. Here’s where the RCMP’s purported authority begins to collapse on more than one front. First, the MEMP itself lists in Section 4.10 the powers of the Director of the High River EOC. That list of powers does not include the power to authorize the RCMP or anyone else to make warrantless entries into residences, or any building. Mr. Shapka was given a list of powers in the MEMP but the power to authorize warrantless entries was not among them. Doesn’t that end the claim that he was able to confer such power on the RCMP? Furthermore, Sections 4.7.3 and 4.7.4 of the MEMP provide direct references for the Town’s emergency procedures and powers. The powers of Sections 19 and 24 of the EMA, (the ultimate source of these alleged warrantless search powers) is expressly stated to belong to “Council”. How can Council or the EOC validly delegate warrantless entry powers “in the operation of” a Plan which itself states that such power belongs to Council? It is circular reasoning or, at least, seems ineffective.

Second, both the Act and the Bylaw appear to limit the power to authorize warrantless entries to situations where such warrantless entries are made in furtherance of an existing Emergency Plan. In the EMA, subsection 24(1)(c) states that a local authority may exercise the enumerated extraordinary powers, e.g., warrantless entry into buildings, “in the operation of an emergency plan or program”. The relevant portion of the Town’s Bylaw contains the same wording when it talks about delegation of that power to anyone. The power must be exercised in furtherance of a prepared Emergency Plan. Such a limitation makes sense. Prudent legislators would not want to hand down broad draconian powers to people who might panic in an emergency. They would want bureaucrats, civil servants and police exercising any extraordinary emergency power ONLY within the limits of a written Emergency Plan that was thought out calmly and carefully before the emergency hit. In fact, that is just how the Act and the Bylaw were drafted. Here is where the plot thickens. The RCMP have lately claimed that they were forcibly entering homes to search for, and tend to, stranded people and any abandoned pets. Let’s examine each of those claims. My friend, Dennis Young, has obtained a copy of officers’ notes taken during the RCMP’s door- crashing campaign. We have carefully reviewed all of those notes. There is not a single mention of a rescued person, although the feeding pets is recorded. This discrepancy has also been reported by Lorne Gunter of SUN News. Therefore, the RCMP claim that 754 High River homes were forcibly entered, resulting in approximately 2,000 damage claims submitted by residents and that a total of 4,666 warrantless entries were made (with some homes entered more than once) for the principal purpose of rescuing persons rings hollow. After reviewing hundreds and hundreds of pages of RCMP documents obtained through Access to Information Act requests, RCMP notes do not record a single person rescued in that door-crashing campaign. Not one. The other alleged rescue effort was to save pets. To date, no-one has challenged the business of rescuing pets. I do so now. Recall the requirement that the power to authorize warrantless entries must be made “in the operation of” the Municipal Emergency Management Plan and related plans or programs. There appears to be nothing in the EMA nor the Town’s then-existing Bylaw and Emergency Plan which empowers or directs - or even mentions - the search or rescue of pets as being the Town’s concern during a state of emergency.

If the Bylaw and/or MEMP does not mention the care of pets or the welfare of pets as part of the High River's emergency agenda or plan, then how does anybody claim to be using these extraordinary powers “in the operation of” the Town’s Municipal Emergency Management Plan? There is nothing in the provided copies of either the High River Bylaw or the MEMP that mentions pets. How can it be reasonably claimed that the RCMP’s door-to-door search for pets and forcible entry into homes for that alleged purpose was “in the operation of” the MEMP? It is not reasonable to postulate that High River might have had some unwritten emergency “plan or program” where the RCMP might find a chain of legal justification to break down doors to feed pets. The EMA pretty clearly requires that qualifying plans and programs shall be in writing and it certainly contemplates that such plans and programs will have been prepared by local authorities before an emergency arises. The only such plan or program we have found is the MEMP referenced above. As stated, pets are not mentioned. If there is a Provincial emergency plan which addresses the rescue of pets, we have not yet seen it. Such a plan might support the RCMP’s position, assuming that power can be traced to the High River EOC and then on to the RCMP, as they have claimed. A third problem with the claim of a valid delegation of power from the High River EOC to the RCMP arises with any actions taken after June 27. Recall that the Province made its own declaration of a state of emergency on June 27. That is recorded in High River’s account of what happened during the flood and which is posted here. There are consequences to a Provincial declaration of a state of emergency. Section 22(3) of Alberta’s EMA reads:

22. Cancellation of declaration of state of local emergency ....... 22(3) A declaration of a state of local emergency ceases to be of any force or effect on the making of an order for a state of emergency by the Lieutenant Governor in Council relating to the same area of the municipality. [my bold]

On a plain reading of subsection 22(3) of the EMA, from and after June 27, 2013 when the Province made its own declaration of a state of emergency, nobody in the High River EOC had the authority to permit warrantless searching nor to delegate that to the RCMP. Why? Because the state of local emergency declared by High River had, by law, ceased to have any force and effect when the Province had issued its own declaration and therefore it would seem that all the consequences in the High River Bylaw and MEMP that were triggered by that declaration of a local state of emergency on June 20 was also at an end. The Town Council reverted to their usual status and Mr. Shapka returned to being a bylaw enforcement officer. From and after June 27, it seems the RCMP could no more look to the High River EOC or the High River Town Council for authority to enter flooded High River homes without permission (forcibly or otherwise) than the RCMP could look to them to issue search warrants in a drug operation. Such authorities must come from a Judge under the features of our Rule of Law. There is evidence that warrantless entries were made after June 27th. An e-mail penned on June 14, 2014 by K Division Commanding Officer Marianne Ryan confirmed the unwarranted search of ". . . 4,666 homes and businesses in High River for the purpose of locating missing persons and checking for gas leaks. Forced entry occurred at 754 of those locations. After June 24th and until July 13th, when home inspections ended, the RCMP acted as security escorts for pet rescue, building inspection and utility crews. The majority of homes were re-visited at least once again for these purposes." In summary, it is hard to understand how leadership in the RCMP could have truly believed in the summer of 2013 that their officers could legally crash down doors to High River homes in search of possibly stranded pets; it is utterly impossible to understand how that justification can be advanced a year later. When one recalls the blithe answer of an RCMP spokesman at that first news conference which questioned these entries and gun seizures, concerns are amplified. Recall also that the RCMP spokesman said that such actions are “not remarkable for us.” That may be, but such police actions are certainly remarkable for the rest of us. At the the of the day, why do we need take a hard and unflinching look at this disturbing episode in Alberta’s and Canada’s history? Most of the answer is simple. Tyranny is like a bad cooking odour. It is always easier to smell in someone else’s house. Note: Thanks and appreciation are due to my friend, Dennis Young, a retired RCMP member, for his tireless work in getting to the bottom of what really happened in High River. That important effort continues. Rick Hemmingson is a published author whose legal experience ranges through various litigation matters to a variety of solicitor's work including estate planning, probate, corporate, partnerships and real estate development; with a special interest in matters related to the Firearms Act and regulations. Rick is a past member of the Board of Governors of the Alberta Civil Trial Lawyers Association. He graduated with distinction from the University of Saskatchewan in 1988 and is a Member of the Bar in both Alberta and British Columbia.