Report Following a Public Interest Investigation into a Chair-Initiated Complaint Respecting the Death in RCMP Custody of Mr. Robert Dziekanski
Table of Contents
Mr. Robert Dziekanski died while in the custody of members of the Royal Canadian Mounted Police (RCMP) in the early morning hours of October 14, 2007, in the international arrivals area of the Vancouver International Airport (YVR). The circumstances leading to the death of Mr. Dziekanski have resulted in great pain and sorrow for his family and in great public interest and concern.
Public comment and discussion focused on the nature of the interaction between Mr. Dziekanski and the RCMP members, including whether the RCMP members adhered to policy and whether that policy was reasonable. The nature of the CEW as a weapon, training provided to RCMP members in its use, and the specific use of the CEW by the responding RCMP members during the YVR incident played a prominent role in the ensuing review by the Commission for Public Complaints Against the RCMP (CPC or Commission).Footnote 2
I was, and am, of the view that this incident required examination by the Commission, a neutral and dispassionate third party, to address not only the conduct of the RCMP members involved, but also the issues of adherence to and adequacy of existing RCMP policy and training. As Chair of the Commission, therefore, on November 8, 2007, I initiated a complaint to delve into the two aspects of the incident which are within the jurisdiction of the Commission, those being the appropriateness of the response by the RCMP to the complaints concerning Mr. Dziekanski's behaviour at YVR, and the police investigation of the death of Mr. Dziekanski.Footnote 3
An issue inextricably linked to the incident is the use of a conducted energy weapon (CEW), also known as a TASER®, by an RCMP member during the arrest of Mr. Dziekanski. The CEW is a prohibited firearm pursuant to the regulations under the Criminal Code of Canada.Footnote 4 Debate pertaining to the overall appropriateness of the use of CEWs by police had been ongoing for some time prior to the YVR incident (and has been previously commented on by the Commission as indicated below), but this particular use of a CEW focused considerable attention and scrutiny on appropriate CEW usage and the nature of the CEW as a weapon.
Separately, on November 20, 2007, the Minister of Public Safety, the Honourable Stockwell Day, requested that the Commission ... review the RCMP's protocols on the use of CEWs and their implementation, including compliance with such protocols and provide an interim report by December 12, 2007.
The following sets out an overview of the events leading to the death of Mr. Dziekanski and provides a factual backdrop to the incident.
The issues surrounding the incident itself as well as a discussion and analysis of relevant policies, training and other conduct and related issues will be discussed in depth in the body of this report. Additionally, further detail may be found in the appendices attached to this report. While most observers are by now familiar with the incident, a brief summary bears repeating for the purposes of this report.
Mr. Robert Dziekanski, then a 40-year-old Polish immigrant intending to join his mother, Ms. Helena Zofia Cisowski, in Canada died early in the morning of October 14, 2007 at YVR while in the custody of members of the RCMP.
Mr. Dziekanski departed from Katowice, Poland on Saturday, October 13, 2007 at 6:20 a.m. (Central European Time) on Lufthansa Airlines flight 3297. He arrived at 7:55 a.m., approximately one hour and thirty five minutes later, in Frankfurt, Germany (Central European Time).
Mr. Dziekanski departed from Frankfurt, Germany on Saturday, October 13, 2007 at 12:15 p.m. (Central European Time) on Condor Air flight 6070. Condor Air flight 6070 arrived in Vancouver at 3:12 p.m. on Saturday, October 13, 2007. This equates to 00:12 a.m. Central European Time on Sunday, October 14, 2007.
By the time he arrived in Vancouver, Mr. Dziekanski had been travelling for a total of almost 18 hours, not including the time since he awoke and travelled to the airport in Katowice, Poland.
Persons coming into Canada pass through a two-stage process when clearing Canada Customs and Immigration requirements. The first is a Primary Inspection Line (PIL), at which the person seeking to enter Canada is asked preliminary questions by an officer of the Canada Border Services Agency (CBSA). If the CBSA officer determines that the traveller requires further review, either from the perspective of Customs or Immigration requirements, that officer will refer the traveller for a secondary inspection. Mr. Dziekanski was referred to the secondary area.
Overall security of the airport is the responsibility of the Vancouver Airport Authority, which employs private security personnel to patrol the airport grounds. Pursuant to agreements involving the Province of British Columbia, the City of Richmond and the Greater Vancouver Airport Authority, the policing of the airport and surrounding City of Richmond is the responsibility of the RCMP pursuant to the terms and conditions of the Municipal Policing Supplemental Agreement for British Columbia – Vancouver International Airport.Footnote 5
Both CBSA and YVR employee witnesses indicated to RCMP investigators that Mr. Dziekanski was perspiring heavily when he appeared at the PIL. No CBSA official nor any YVR employee in the area appears to have taken any action to either assist Mr. Dziekanski or attempt to determine the cause of his physical state at that time. It should be noted that the CBSA has conducted its own investigation with respect to the conduct of its officers. These issues are also within the purview of the Braidwood Commission (explained below).Footnote 6
For reasons unknown, Mr. Dziekanski opted to remain in the secure area of YVR international arrivals for almost six and a half hours. He did not seek assistance from, and he was apparently not noticed by CBSA officers or YVR staff during the intervening time.
At approximately 10:30 p.m. on Saturday, October 13, 2007, Mr. Dziekanski approached the Canada Customs Secondary Inspection point, at which time he received assistance from CBSA officials to locate his baggage in the unclaimed luggage area of the secure facility, cleared Customs and was directed to the Canada Immigration office. He was processed as an immigrant and admitted to Canada at approximately 00:45 a.m. on Sunday, October 14, 2007. At that point he was free to leave the airport and enter Canada. While being processed at the CBSA secondary examination, however, Mr. Dziekanski was provided with several glasses of water by CBSA officials.
Because video surveillance footage, as it existed at that time, did not capture much of this area, for the most part, Mr. Dziekanski's movements cannot be tracked during that six-and-a-half-hour period. The secure area in which Mr. Dziekanski remained for the duration of this time contains luggage carrousels, baggage counters and seating areas, as well as the secondary examination areas for Canada Customs and Immigration.
Mr. Dziekanski was noted on YVR video surveillance cameras to have exited the secure area of the international arrivals area, waited for a short time in the public waiting area, then gained re-entry to the secure side of the international arrivals area.
Attached to this report as Appendix G is a chart, posted in December 2007 on the website of the Vancouver Airport Authority,Footnote 7 which illustrates the area involved and provides an overview of some of the changes made by the airport in the wake of the death of Mr. Dziekanski. The incident involving Mr. Dziekanski took place at the point leading from the international arrivals passenger service area to the public greeting area.
I note at the outset and recognize that interests and entities in addition to the Commission have an ongoing interest in these issues and events. The Government of British Columbia has created what has commonly been referred to as the Braidwood Inquiry to examine the death of Mr. Dziekanski and its effects.
In addition, the British Columbia Civil Liberties Association (BCCLA) has lodged two complaints with the Commission.Footnote 8
Finally, I will make reference in this report to the Independent Observer Program. This is an initiative arranged between this Commission and the Commanding Officer of RCMP "E" Division (British Columbia), whereby Commission staff are assigned to observe and assess the impartiality (not the adequacy) of RCMP investigations which examined the conduct of RCMP members who are involved in high-profile and serious incidents, such as in-custody deaths.Footnote 9
Summary of Findings and Recommendations
My findings and recommendations, with a commensurate explanation for each, are set out in the body of this report. A summary is located at Appendix Y.
Allegation 1 – RCMP Conduct and the Death of Mr. Dziekanski
This part of the report will address what I consider to be the primary aspects of the interaction between the responding RCMP members and Mr. Dziekanski. For a more complete discussion of the issues, please see the appendices as referenced in the report.
As Chair of the Commission, I am authorized pursuant to subsection 45.37(1) of the Royal Canadian Mounted Police Act to initiate a complaint for investigation.
The findings and recommendations made by the Commission are not criminal in nature, nor are they intended to convey any aspect of criminal culpability. Although some terms used in this report may concurrently be used in the criminal context, such language is not intended to include any of the requirements of the criminal law with respect to guilt, innocence or the standard of proof.
With respect to the first part of my complaint, the interaction between the RCMP members and Mr. Dziekanski, it is crucial to bear in mind that the Commission focused on the key question of what the responding members knew at the time they attended the scene of the complaint of a man acting erratically. What the members attending actually knew, or should have surmised, is crucial in determining whether they acted appropriately in the circumstances and whether they complied with the law and applicable RCMP policies. Further, attributing knowledge to them that they did not have or could not reasonably have had at the time of the incident is not helpful in assessing the evidence or arriving at reasonable conclusions, findings and recommendations.
RCMP Involvement and Timing of the Response
Four RCMP members were on duty at YVR during the evening of Saturday, October 13, and early hours of Sunday, October 14, 2007. Presumably because the shift had been quiet and no calls for assistance had been received by these members, all four were present at the RCMP sub-office at YVR at the time complaints were received concerning a male acting erratically in the international arrivals area, which was less than two minutes away by car. The complaint was received from RCMP dispatch by Constable Kwesi Millington, one of the four members on duty. As will be discussed below, I have a number of issues with the version of events as presented by the responding members.
The members on duty that evening were:
Corporal Benjamin Robinson — Corporal Robinson was the most senior member present and was also the shift supervisor. At the time of the incident, Corporal Robinson had approximately 11 years of police service and had been posted in several detachments in British Columbia.
Constable Kwesi Millington — Constable Millington had just under two and a half years service, and was the only one of the four who was equipped with a CEW that evening (Model X26E).
Constable Gerry Rundel — Constable Rundel had approximately two years of service and had been posted to the Richmond Detachment since October 2005 and at YVR since approximately October 2006.
Constable Bill Bentley — Constable Bentley had approximately one and a half years of service. He began working at YVR in September 2007.
The three constables had served entirely at the Richmond Detachment.
All four members had received basic training at the RCMP Academy in Regina, Saskatchewan and been posted to "E" Division (British Columbia). This report will delve further into their training and certifications as they become relevant to the analysis.
According to these same members in their testimony before the Braidwood Inquiry, the RCMP sub-detachment at YVR does not have a specific policy with respect to storage, assignment and carrying of a CEW. Evidence indicated that two CEWs were available at YVR to be carried by RCMP members on an "as available" basis, and that although not specifically articulated, it was practice that more senior members signed out and carried the CEWs.
A number of persons were present in the public greeting area of YVR outside the international arrivals exit area. One of those present, Mr. Paul Pritchard, noticed Mr. Dziekanski, who at that time was back on the secure side of the point of egress from international arrivals.
Following a heated verbal exchange between Mr. Lorne Meltzer (a limousine driver who had come to YVR to pick up a client from an international flight) and Mr. Dziekanski, Mr. Pritchard captured the actions of Mr. Dziekanski in a series of digital video recordings. Mr. Pritchard's videos provide a more accurate record of the actions of Mr. Dziekanski in the seconds prior to the arrival of the RCMP and the interaction between Mr. Dziekanski and the RCMP, than does the YVR video. Accordingly, Mr. Pritchard's video has been the primary means of mapping the chronology of the interaction between Mr. Dziekanski and the four RCMP members who attended.
Interaction Between RCMP Members and Mr. Dziekanski
As a result of a series of 911 calls, the four RCMP members on duty at YVR responded to complaints of a man (now known to be Mr. Dziekanski) acting erratically in the international arrivals area. The four travelled via separate vehicles, but all arrived at approximately the same time. In addition to the initial dispatch, the members received updating information en route via police radio.
The radio traffic between the YVR members and RCMP dispatch confirms that at the time of attending the exit from the international arrivals secure doors, the four RCMP members had been advised that a male of approximately 50 years of age (Mr. Dziekanski was later found to be 40 years of age), who was thought to be intoxicated (later found not to be true), was acting erratically, throwing luggage around and throwing chairs through windows (later found not to be true). The male was further described as having dark hair and was wearing a white jacket.
As the four members arrived, it was pointed out to them by YVR security that Mr. Dziekanski was the person involved in the erratic behaviour and that he did not speak English. As the members entered the secure area, they would have been able to view the broken computer on the floor as well as a small table broken against the glass (no glass was actually broken).
The RCMP members had no way of knowing that Mr. Dziekanski had been travelling for many hours, that he apparently had consumed no food and had very little fluids to drink, nor could they be expected to gauge the level of Mr. Dziekanski's state of mind or his possible frustration at not meeting his mother as he had no doubt anticipated would happen when he arrived in Canada.
The Pritchard video and witness statements confirm that upon arrival, the RCMP members received basic information from YVR Security and other witnesses as they continued to walk toward Mr. Dziekanski and hopped over a small retaining barrier. The members went directly to Mr. Dziekanski who was standing just inside the doors (on the secure side) of the international arrivals exit area.
All four members approached Mr. Dziekanski. None stopped to meaningfully obtain details or confirm from witnesses present the information received via police radio with respect to the nature of Mr. Dziekanski's actions (such as the allegation that Mr. Dziekanski had thrown furniture through a window – which was later found not to be true – or the degree of violence involved). One might speculate that had one or two members taken the time to do so while the remaining members approached Mr. Dziekanski to monitor for further outbursts, it is possible that the dynamic of the interaction and final outcome would have been entirely different.
Within twenty-five seconds after the interaction began, a decision was made by Constable Kwesi Millington to deploy the conducted energy weapon (CEW) carried by him during that shift. Corporal Robinson appeared to have come to a similar determination at the same time as Constable Millington, in that Corporal Robinson indicated that he instructed Constable Millington to deploy the CEW simultaneously with Constable Millington deploying it on his own. Following the deployment and multiple cycling of the CEW on Mr. Dziekanski and a scuffle involving all four RCMP members, Mr. Dziekanski was subdued and handcuffed. He died shortly thereafter while under the control of the RCMP members.
Further information may be found as follows:
RCMP Members' Response to YVR Complaints
Comments with respect to the response by the RCMP members are predicated on policy in effect at the time of the YVR incident.Footnote 10 In addition, the Criminal Code of Canada authorizes a police officer who is acting in the administration or enforcement of the law to use as much force as is necessary for that purpose.
As noted above, the members were responding to a series of complaints of a man acting erratically. Although they had no direct confirmation, they were advised by RCMP dispatch that there could be alcohol or drugs involved.Footnote 11 As a result, it was incumbent on the members to consider all relevant use of force options available to them, including the use of no physical force at all.
The members were in RCMP uniform and all carried their issued items of kit, including OC spray, an ASP (collapsible) baton,Footnote 12 handcuffs and a sidearm. The CEW is not an issue item of kit, but is signed out by a member at the beginning of, or during, his or her shift. Constable Millington was the only member who carried a CEW at that time.
Since the complaint had been taken by Constable Millington, he may have believed that he was responsible for the file. From a response management point of view, however, Corporal Robinson was the senior member present, had the most experience and he, therefore, had overall responsibility with respect to the RCMP response.
Notwithstanding Constable Millington's testimony during the Braidwood Inquiry that he believed he was in charge of the incident, none of the RCMP members appears to have been in charge and taken control to coordinate the actions of the other responding members.Footnote 13 As shift supervisor, and given the relative levels of policing experience, this duty should have fallen to Corporal Robinson.
As the RCMP members approached the scene, Constable Bentley was heard to ask Constable Millington whether he had a CEW with him. Constable Millington responded in the affirmative.
Although combative behaviour and corresponding use of force options were contemplated by the responding members, I am not aware of any evidence to suggest that the actual use of the CEW was considered prior to arrival by the members. Furthermore, no operational or situational planning appears to have taken place prior to or during the incident.
Suggestions have been offered that Superintendent Wayne Rideout, then the Officer in Charge of the Integrated Homicide Investigation Team (IHIT), knew of conversations among the responding members to imply that the responding members had formulated a plan to deploy the CEW prior to arriving and interacting with Mr. Dziekanski. These suggestions gained further momentum following the disclosure of an e-mail written by Chief Superintendent Richard Bent, then RCMP Deputy Criminal Operations Officer in British Columbia, in which he stated that he had spoken with "Wayne" (Superintendent Rideout) and that Superintendent Rideout had stated that the responding members had formulated such a plan. The Commission has interviewed Superintendent Rideout, who categorically denied having such knowledge or passing such information on to Chief Superintendent Bent.
The Pritchard video of the event indicates that the members initially attempted to placate Mr. Dziekanski and that for a few seconds he stood with his hands at his sides looking at the members. He motioned to his luggage, but was directed toward the counter area a few metres away by Corporal Robinson. At that point, Mr. Dziekanski put his arms in the air and moved to the counter area.Footnote 14
The members then took up positions around Mr. Dziekanski in an arc of approximately 180 degrees (known as tactical positioning) intended, according to Corporal Robinson's statement, to preclude Mr. Dziekanski from moving to another area of the airport. Although not articulated, presumably the purpose of the tactical positioning was to ensure that Mr. Dziekanski could only focus on engaging one member at a time if he chose to resort to violence and to provide a protective distance (known as a reactionary gap)Footnote 15 to allow the members to react in the event that Mr. Dziekanski did attack them.
At approximately the same time, the members displayed differing responses to the same threat cues purportedly displayed by Mr. Dziekanski. As discussed, Corporal Robinson indicated in his statement, and confirmed during testimony at the Braidwood Inquiry, that he was about to order Constable Millington to deploy the CEW as Constable Millington deployed it. Corporal Robinson unholstered his ASP baton, but did not extend it. Constable Bentley unholstered his ASP baton and did extend it. Constable Rundel took no overt defensive action. Constable Rundel did not indicate that he was aware that the CEW was about to be deployed, but he did state that through his training he anticipated the use of the CEW. These differing reactions confirm to me that Corporal Robinson ought to have taken control to ensure a coordinated approach to Mr. Dziekanski.
Within approximately four seconds of the members positioning themselves, Constable Millington deployed the CEW. Medical evidence noted only one mark on Mr. Dziekanski's body consistent with being struck by a CEW probe. The second probe struck the lower part of Mr. Dziekanski's shirt. The probe likely made intermittent contact with Mr. Dziekanski when his shirt moved,Footnote 16 resulting in his being subjected to an intermittent electrical current. Constable Millington noted that the CEW emitted an intermittent "clacking" sound. According to RCMP CEW training, this sound indicates that the circuit is not complete and that contact is not being made. Corporal Robinson said that he told Constable Millington to hit him again (i.e. cycle the CEW again) because the CEW was having no effect.
RCMP Operational policy in effect at the time required that, when possible, members are to give the warning Police, stop or you will be hit with 50,000 volts of electricity!Footnote 17 This warning, or challenge as it is called in RCMP policy, was not given by Constable Millington. He was not asked by the IHIT investigators about the failure to warn when he gave his statements post-event. However, in his CEW Usage Report (Form 3996), Constable Millington indicated that the warning was not given. The reason cited was:
Member told male to stop moving and put hands on desk nearby. The male did not understand English so verbal communication was difficult.
During his testimony at the Braidwood Inquiry, Constable Millington stated that he felt he did not have time to issue the challenge to Mr. Dziekanski before he deployed the CEW.
Having viewed the video of the event, I see no reason why the warning could not have been given. The members had surrounded Mr. Dziekanski by that time and although one senses from the video that steps to address the situation were about to be taken imminently, Constable Millington had time to issue the challenge prior to discharging the CEW.
As noted, prior to the discharge of the CEW, time was also available for the members to confirm events with witnesses, consider tactical repositioning or to attempt other means of de-escalating the situation, such as continuing to use hand gestures and presenting a non-threatening demeanour to Mr. Dziekanski. Unfortunately, the CEW was discharged before any meaningful de-escalation was attempted.
In the final analysis no one will ever know whether it would ultimately have been necessary to physically subdue Mr. Dziekanski had other methods failed. The point, however, is that no other methods of de-escalation were attempted to defuse or resolve the situation with less risk of injury to all involved.
I accept that Corporal Robinson did not initially instruct Constable Millington to deploy the CEW and that Constable Millington did so on his own initiative. The question remaining is whether the deployment of the CEW was reasonable in the circumstances.
The members had been advised as they entered the area that Mr. Dziekanski did not speak English. It would be reasonable to assume that Mr. Dziekanski did not understand them, but given that he was about to be struck by the CEW, Constable Millington should have issued the challenge in any event. No doubt situations have occurred in which an individual feigns an inability to speak a language in order to obtain an advantage. Issuing the challenge would have ensured that Mr. Dziekanski, if he actually did understand English, was aware of what was about to happen. The tone of voice and body posture would also have alerted Mr. Dziekanski to the fact that escalation of force by the police was imminent.
The Commission has asked the RCMP to provide information on the training received by its members in dealing with persons who cannot understand or meaningfully communicate with RCMP members. I am advised that no such training is provided.
Further, issuing the warning would have alerted the other responding members that the CEW was about to be deployed. A warning of this nature, when tactically feasible, is supported by the "E" Division Use of Force Coordinator, Corporal Gregg Gillis. As noted, at least one of the members indicated that he did not know the CEW was about to be deployed until he heard it discharge. A warning in this circumstance would, therefore, have served two purposes:
- It would have alerted the other members to ensure that no one moved in to engage Mr. Dziekanski just as Constable Millington fired the CEW, thereby possibly obscuring the target or being struck by the probes themselves. Shouting "TASER! TASER!" prior to discharging the weapon is recommended as a tactical consideration in the TASER International training course, and
- It would have drawn Mr. Dziekanski's attention to the fact that a weapon was pointed at him and would have confirmed to Constable Millington and the others present that Mr. Dziekanski was aware of the presence of a weapon (whether or not he appreciated it was a CEW). From my viewing of the Pritchard video, I do not believe that Mr. Dziekanski actually looked at Constable Millington before the CEW was deployed. The understanding that a weapon was pointed at him may have caused the situation to de-escalate, thereby avoiding the necessity of deployment. Conversely, had the CEW been ultimately necessary, at a minimum other means of resolution would have been attempted.
Another related aspect of the deployment of the CEW with which I have concern is the fact that the members did not speak with each other during the incident. Constable Bentley stated that he was unaware of the CEW until Constable Millington discharged it. At no time did Constable Millington indicate to the other members present that he was unholstering the weapon or that he actually intended to deploy it. As I have indicated above with respect to the failure to warn the other members present, nothing prevented Constable Millington from unholstering the weapon and advising the other members that he had done so, then while covering Mr. Dziekanski with the CEW, either obtaining their input as to how best to handle the situation (given his limited operational experience), or advising the others of his intention to deploy the CEW.
Various operational rationales have been advanced as to why Constable Millington could not take additional time to assess the situation. These include the facts that Mr. Dziekanski had in his hand a weapon (an open stapler) and that the target Mr. Dziekanski presented to Constable Millington might be lost if Mr. Dziekanski lunged at one of the responding members. I find it difficult to accept these as being realistic in the circumstances.
I appreciate that the events as they unfolded in real time were stressful for all involved and I do not expect police officers to engage in communal decisions when the window to do so is very short and the circumstances dictate an immediate response. That said, Mr. Dziekanski was fully surrounded in a confined space. Had Constable Millington taken even a few more seconds to take stock of the available options, the dynamic may have changed and resulted in a much different outcome.
The RCMP members involved in the arrest of Mr. Dziekanski were in the lawful execution of their respective duties and were acting under appropriate legal authority.
In light of the information possessed by the RCMP members responding, the decision to approach Mr. Dziekanski to deal with the complaints was not unreasonable. At any point a member of the travelling public or an employee at YVR could have happened upon Mr. Dziekanski. As evidenced by the multiple calls to 911, it was incumbent upon the RCMP members to ensure a safe environment for the public and employees using the airport facility and to halt the disturbance being caused by Mr. Dziekanski.
To ensure a coordinated approach to Mr. Dziekanski, Corporal Robinson should have taken control and directed the other responding members to ensure that each was aware of the intended response and to ensure that each communicated with the others as the events unfolded.
Prior to deploying the CEW, Constable Millington should have issued the required warning/challenge to Mr. Dziekanski as required by RCMP policy, notwithstanding the fact that Mr. Dziekanski appeared not to understand the English language.
Because no significant attempts were made by the RCMP members present to communicate with Mr. Dziekanski, to obtain clarification of information pertaining to Mr. Dziekanski's situation or to communicate among themselves, deployment of the CEW by Constable Millington was premature and was not appropriate in the circumstances.
The RCMP should consider designing and implementing training for its members in techniques to communicate with persons who cannot verbally communicate with them.
Discharge and Cycling of the CEW
Corporal RobinsonFootnote 18 and Constable Millington appear to have been of the same mind with respect to the use of the CEW in these circumstances. During the Braidwood Inquiry, Constable Millington indicated that even though Corporal Robinson directed him to cycle the CEW subsequent to the initial deployment, the decision to cycle it again was his.
The video of the incident demonstrates that upon being struck by the probes, Mr. Dziekanski turned and stepped to his right. An open stapler can be seen in his right hand as he raised his arms. The members present characterized his actions as attempting to "fight through" the electrical current. They said they had seen others attempting to fight off the CEW during CEW training sessions. As the first cycle of the CEW ended, Mr. Dziekanski fell to the floor, obviously writhing in pain.
Following the death of Mr. Dziekanski, data from the CEW was downloaded.Footnote 19 The download report noted the following CEW activations:
- 2007-10-13 19:55:33 hours one- (1) second [spark testFootnote 20];
- 2007-10-14 01:23:49 hours six- (6) second activation;
- 2007-10-14 01:23:55 hours five- (5) second activation;
- 2007-10-14 01:24:12 hours five- (5) second activation;
- 2007-10-14 01:24:25 hours nine- (9) second activation; and
- 2007-10-14 01:24:32 hours six- (6) second activation.
The time indicated in the download report indicates the end of a firing cycle, not the beginning.
According to the report, the total cycle time with respect to Mr. Dziekanski was 31 seconds, but the amount of time the current actually made contact with Mr. Dziekanski could not be established. Although the cycle may be interrupted by the operator, the TASER® X26E is programmed such that the CEW produces current for five seconds after it is discharged. At that point the current stops flowing, unless the trigger is pulled by the operator. I note that information adduced during the Braidwood Inquiry indicated that at 10 milliseconds into the next second, the CEW rounds up to the nearest second. Constable Craig Baltzer, the Delta Police member who performed the download of the CEW involved in the Dziekanski incident was not aware of the rounding characteristics of TASER® products.
With respect to multiple cycles of the CEW, the Incident Management/Intervention Model (IM/IM)Footnote 21 cautions against injury to the subject. This is supported by the RCMP Operational Manual, which also cautions that the subject may be injured by multiple cycles of the CEW.
The Pritchard video, when mapped against the CEW download report shows that Mr. Dziekanski had fallen to the floor and was writhing in pain at the termination of the first five-second CEW deployment. This begs the question of why additional CEW cycles were necessary. RCMP policy stipulates that control of a subject should be taken at the earliest opportunity after CEW deployment in probe mode.Footnote 22
Following the first CEW discharge, the members can be seen standing around Mr. Dziekanski. After a one-second pause, the CEW is cycled a second time for five seconds. It is not until the termination of the second deployment that Corporal Robinson can be seen as the first member to move in to subdue Mr. Dziekanski. At this point, Mr. Dziekanski had been subjected to a total of approximately 10 seconds of intense pain with no attempt made by police to restrain him.
After the second deployment, the responding RCMP members began to struggle with Mr. Dziekanski. Instead of waiting until he observed the members attempting to subdue Mr. Dziekanski to determine whether a third deployment was necessary, Constable Millington, after a two-second delay, again deployed the CEW for a five-second cycle. This, as I view the Pritchard video, appears to be in response to Corporal Robinson's direction to Hit him again.
On completion of the third deployment in probe mode, Constable Millington removed the cartridge from the CEW and, four seconds later, deployed the CEW in push stun mode against Mr. Dziekanski's back for nine seconds. As noted previously, according to the RCMP Operational Manual as it existed at the time of the incident, in push stun mode the CEW is a pain compliance device.Footnote 23
After a one-second delay, Constable Millington again deployed the CEW against Mr. Dziekanski in push stun mode for a further six seconds.
I note that in his testimony during the Braidwood Inquiry, Constable Millington indicated that although the trigger of the CEW may have been pulled, contact was not made with Mr. Dziekanski for the duration of the 31 seconds of cycling.
In terms of the number of deployments/cycling of the CEW (as noted above, five in total), and in light of the above-mentioned danger to the subject from multiple deployments as identified in the RCMP policy,Footnote 24 once he decided to deploy the CEW it was incumbent on Constable Millington to deploy the weapon the least number of times necessary to control Mr. Dziekanski. Mr. Dziekanski was on the floor writhing in pain at the end of the first deployment, yet Constable Millington opted to cycle the CEW a second time before any attempt was made to control Mr. Dziekanski or to wait until his reaction to the first deployment was observed. Had Mr. Dziekanski been subdued and arrested after the first deployment, further deployments would obviously have been unnecessary.
As Constable Millington did not conduct an adequate assessment of the first deployment, contrary to the CAPRA model,Footnote 25 whether further cycling was actually necessary cannot be known.
The deployment and further cycling of the CEW, particularly those in push stun mode, were up to nine seconds in length. This, in my view, was an inappropriate use of the CEW. Of a total of 49 seconds from the time Constable Millington first deployed the CEW, it was activated for 31 seconds. Although Constable Millington has indicated that he heard an intermittent clacking sound in probe mode (indicating that contact was not being made with Mr. Dziekanski for part of that time), no significant effort was made to determine the effect the CEW was having on Mr. Dziekanski.Footnote 26 This is true both with respect to his physical well-being and whether he was prepared to stop struggling and allow himself to be arrested. The use of the CEW in those circumstances, therefore, became inappropriate.
In testimony during the Braidwood Inquiry, Corporal Gillis (an RCMP use of force expert) testified that the neuromuscular stimulus inflicted by the use of the CEW in either probe or push stun mode against Mr. Dziekanski would not have caused him to pull his arms into his chest and lock them to avoid being handcuffed because the current from the CEW removes the ability of the individual to work all the various motor and ligament functions required to carry out such a motion. Despite these assertions, in my view, whether Mr. Dziekanski appeared to struggle because his muscular contractions made it impossible for him to allow his arms to be pulled back or because he did not wish to allow it cannot be known.
I note that after the final cycle of the CEW, the struggle continued for approximately one more minute before Mr. Dziekanski was finally handcuffed. Constable Millington has not explained why he terminated the CEW cycling when he did and why he did not find it necessary to continue to deploy the CEW against Mr. Dziekanski during the balance of the struggle.
Obviously, Mr. Dziekanski is unable to inform us as to whether he continued to struggle to avoid being handcuffed, or in desperation to be able to breathe.
Constable Millington cycled the CEW multiple times against Mr. Dziekanski when those subsequent cycles were not known by him to be necessary for the control of Mr. Dziekanski.
The multiple cycles of the CEW against Mr. Dziekanski when no significant effort was made to determine the effect of the CEW on Mr. Dziekanski was an inappropriate use of the CEW.
Provision of First Aid
Statements indicate that until the time shortly before the Richmond Fire Rescue Department and BC Ambulance personnel arrived, Mr. Dziekanski was breathing and had a pulse. In his statement to IHIT, Constable Millington stated that Mr. Dziekanski was put into handcuffs and members waited for EHS members to arrive to examine the male.
Video of the event indicates that Corporal Robinson did stay with Mr. Dziekanski and, along with Mr. Trevor Enchelmaier (a supervisor for Securigard, a private security firm at YVR), monitored Mr. Dziekanski who, by both of their accounts, was breathing and had a pulse. In such a case, and given that no other wounds required immediate first aid, the appropriate course would have been to monitor Mr. Dziekanski for breathing and heart rate.Footnote 27
Constable Bentley can be seen in the Pritchard post-incident video, but provided no first aid to Mr. Dziekanski. The other two constables present did not monitor Mr. Dziekanski. Constable Rundel was dispatched by Corporal Robinson to obtain a set of "hobbles"Footnote 28 from the police car in the event that Mr. Dziekanski regained consciousness and became violent again. Constable Millington can be seen to roll up the electrical wires from the CEW on the Pritchard post-incident video.
Mr. Enchelmaier took Mr. Dziekanski's carotid pulse at least three times prior to the arrival of Richmond Fire Department and BC Ambulance paramedic personnel; he said the pulse became progressively weaker. According to Mr. Enchelmaier's statement, the reason he did so was because none of the RCMP members opted to take off their gloves to check Mr. Dziekanski's pulse. Mr. Enchelmaier also said that he spent time ensuring that his staff were performing their roles effectively; therefore, he may have missed or does not recall Corporal Robinson's actions. Corporal Robinson testified during the Braidwood Inquiry that he did take his glove off to check Mr. Dziekanski's pulse. The Pritchard video shows Corporal Robinson taking his glove off and a motion that is consistent with him taking a pulse.
The fact that Corporal Robinson took off his glove and checked the pulse does not constitute the provision of adequate care to Mr. Dziekanski. Had Corporal Robinson taken the pulse himself on a regular basis he would have recognized that Mr. Dziekanski's pulse and breathing were becoming weaker and less regular and this information would have been relayed to the Richmond Fire and BC Ambulance personnel by police radio prior to their arrival.
Corporal Robinson also testified that he was not aware of medical equipment, such as a defibrillator, being available at YVR. When asked if he had requested emergency medical personnel available at YVR, his evidence was that the role of the police is to request medical assistance when it is required, but not to request it from a specific location.
Notwithstanding the fact that Mr. Enchelmaier opted to assist, it was the RCMP members on scene who had primary responsibility for Mr Dziekanski's welfare until that responsibility was ceded to the fire and ambulance personnel who attended.Footnote 29 Members of the RCMP had arrested and placed Mr. Dziekanski in handcuffs and, given the duty of care owed to persons in custody, it was their responsibility to physically monitor and see to the welfare of Mr. Dziekanski. It should have been RCMP members, therefore, who actually monitored Mr. Dziekanski pending the arrival of qualified medical personnel.
According to their statements and testimony during the Braidwood Inquiry, none of the responding RCMP members indicated that they had asked Mr. Enchelmaier about his first aid qualifications at the time of his intervention. I have no reason to believe that Mr. Enchelmaier's fist aid qualifications were previously known to the RCMP members. The RCMP members, therefore, had no way of knowing whether Mr. Enchelmaier was qualified in first aid or whether his involvement would exacerbate an already serious situation.
Mr. Enchelmaier was certified in first aid and stated that Mr. Dziekanski was breathing and (initially) had a strong pulse. According to Corporal Robinson, Mr. Enchelmaier indicated that Mr. Dziekanski was still breathing shortly before the arrival of the emergency medical personnel. Mr. Enchelmaier confirmed making that statement and indicated to an IHIT investigator that when the Richmond Fire personnel arrived and he turned Mr. Dziekanski over to them, Mr. Dziekanski was breathing and had a pulse, albeit the pulse rate was slower than it had been previously.
Testimony from Richmond Fire personnel during the Braidwood Inquiry was critical of the level of first aid provided by the police. BC Ambulance personnel, who arrived within minutes of Richmond Fire personnel, were critical of the failure of Richmond Fire personnel to provide Mr. Dziekanski with appropriate first aid, including the failure to administer oxygen to him. A Richmond firefighter at the scene testified that BC Ambulance personnel arrived just as the initial assessment of Mr. Dziekanski was being completed.
Corporal Robinson did not adequately monitor Mr. Dziekanski's breathing and heart rate.
Because Corporal Robinson did not know the qualifications of Mr. Enchelmaier, he should not have allowed him to provide first aid or actively monitor Mr. Dziekanski's condition. That task should have been performed by the RCMP members themselves. Corporal Robinson, therefore, failed to provide adequate medical care to Mr. Dziekanski.
RCMP detachment familiarization procedures should include a detailed review of available medical facilities and equipment.
Removal of Handcuffs
The initial call from the involved police officers for medical support was for a routine response (Code 1), but it was quickly upgraded to Code 3 (emergency response) when Mr. Dziekanski became unconscious. According to witness statements and the statements of the responding members, prior to the arrival of fire and ambulance personnel, Mr. Dziekanski was turning blue. That Mr. Dziekanski was in distress should have been increasingly obvious to the attending members.
Richmond Fire personnel indicated that they requested several times that the handcuffs be removed, as did BC Ambulance personnel upon their arrival. The reason cited by RCMP members for not removing the handcuffs was a concern for the safety of those present in the event Mr. Dziekanski was being deceptive or regained consciousness and became combative. I am aware of no evidence to support the suspicion that Mr. Dziekanski was feigning or being deceptive. On the contrary, evidence indicates that Mr. Dziekanski was seen to be turning blue as the arrest was being completed. Corporal Robinson who, in his statement to IHIT investigators said that he noticed Mr. Dziekanski's ear turning blue during the struggle recanted during his Braidwood Inquiry testimony and said that he noticed the ear after Mr. Dziekanski was handcuffed. Constable Rundel did not recall the colour change while Constables Bentley and Millington also swore that the colour change to blue occurred after Mr. Dziekanski was handcuffed.
Had the responding RCMP members truly believed that Mr. Dziekanski was being deceptive or just temporarily unconscious and that he would revive and again become combative, as opposed to having a real concern for the safety of Mr. Dziekanski after his arrest, there would have been no need to upgrade the ambulance response call to Code 3.Footnote 30
To argue that for safety reasons handcuffs should not have been removed at that point is indefensible. Corporal Robinson indicated in his statement to IHIT that Mr. Dziekanski began to turn blue during the struggle as he was being arrested; therefore, the members should have had a heightened awareness of the possibility that Mr. Dziekanski may have been experiencing actual distress as opposed to being deceptive. In addition, at that point there were four RCMP members, as well as several Richmond firefighters and YVR security personnel present. Had Mr. Dziekanski recovered and become violent, more than ample personnel were present to deal with the situation.
I temper that remark with an understanding that the subject members had just been involved in a hard struggle to control Mr. Dziekanski. In the heat of the moment, it may be understandable why the members would have subjective concerns with respect to the removal of handcuffs. During the intervening few minutes and the arrival of the fire and ambulance personnel, the members should have recognized that any risk posed by Mr. Dziekanski had been mitigated by his physical exhaustion and clearly waning state of consciousness.
Further, I am aware of the testimony of BC Ambulance personnel during the Braidwood Inquiry to the effect that the conduct of the police in this incident was typical of what they would have expected, and that the fact that Mr. Dziekanski continued to be handcuffed did not preclude the provision of medical aid to him, although such medical assistance would have been facilitated by the removal of the handcuffs.
The handcuffs should have been removed from Mr. Dziekanski when the members recognized that he was unconscious and in distress and no immediate threat to the members was perceived. At a minimum, they should have been removed immediately upon the initial request of medical personnel.
Assessment of Members' Conduct and Credibility
The IM/IM stipulates that risk assessment is a continuous activity throughout any incident:
Since situations evolve, you should be continually assessing risk. The behaviours you are responding to and situational circumstances may change. The reasonableness of the option selected, therefore, may change at any point in the intervention.
As noted in the discussion on the CAPRA model, the first stage of risk assessment identified in the IM/IM is Information Gathering. Information from complainants had been gathered and passed to the responding members via police radio. Some of that information was passed to RCMP dispatch via YVR operations personnel who themselves were passing second-hand information to RCMP dispatch. The responding RCMP members should have known that the information as passed to them may or may not have been correct and required verification/assessment once they arrived at the scene. This is especially true given that four members attended. This provided sufficient numbers to control the scene, obtain the necessary information from bystanders and observe Mr. Dziekanski.
Mr. Dziekanski was contained in the secure area of the airport. The responding members knew he had been at that location for some time and he gave no cue that he was about to evade the police or run. As they approached, Mr. Dziekanski shouted Police! several times in Polish, and stood his ground. I see no reason why the members could not have taken steps to observe Mr. Dziekanski and contain him, and taken some time to obtain some background information from the nearby witnesses.
I note that at least one YVR security employee, in uniform, had been present for a number of minutes prior to the arrival of the RCMP, but Mr. Dziekanski made no move to attack him, evade him or to move to another location away from him. I do not believe that the mere presence of the RCMP members would have exacerbated the situation and required them to take immediate action to approach and arrest Mr. Dziekanski.
In an RCMP training video, the protocol for dealing with persons who are displaying erratic behaviour is demonstrated. The video refers to excited delirium (a term now expunged from the RCMP lexicon); however, the concepts are equally applicable to any situation in which an individual is demonstrating severely agitated behaviour. In the training video, RCMP members are seen responding to a situation in which an individual is clearly disturbed. One member takes control and directs the other two responding members as to how they will approach the subject and how they will effect the arrest (in this video example of scene management and interaction with the subject, the CEW is deployed). Also included in the video are emergency medical personnel.
I recognize that human responses may not always align exactly with policy, especially when those responses come about in the heat of an incident and reactive decisions are made intuitively without time to fully reflect on potential outcomes. It is for this reason that the training component is crucial to the outcome of an incident. If police officers are not trained to react in a manner that will bring about the most successful and least injurious outcome, the decisions taken in response to demonstrated behaviour will not be in keeping with the principlesFootnote 31 of the IM/IM and community expectations of the police.
Much of the discussion concerning this incident includes the response of the members to the complaint of a male acting erratically near the exit doors from the international arrivals area. With respect to the use of the CEW, however, the fact is that it was Constable Millington who opted to draw the weapon and discharge it at Mr. Dziekanski.
The statements of the members indicate varying degrees of awareness of Constable Millington's use of the CEW. Corporal Robinson indicated in his statement that he knew Constable Millington had drawn the CEW and that Constable Bentley had expanded his baton. Corporal Robinson said that he directed Constable Millington to deploy the CEW at almost the same time as it was discharged. Constable Millington had no recollection of being directed to discharge the weapon.
As the shift supervisor and senior member in charge at the scene, the fact that Corporal Robinson was aware that Constable Millington had drawn the CEW from its holster and did not direct Constable Millington to re-holster the CEW, indicates that Corporal Robinson was likely of the view that the use of the CEW was a viable option and within the principles and parameters of the IM/IM. Similarly, the fact that Constable Millington drew the weapon implies that he, too, considered the CEW to be a viable option and in keeping with his training.
Corporal Robinson stated that he had been involved in approximately 12 incidents (operational and in training) during which he had witnessed a person receive an electric shock from a CEW. He said that in none of those incidents was anyone injured.
As can be observed in the table found at Appendix P, the conduct of the members generally aligns with policy; however, it does so only if several assumptions are made. For example, one must assume that the responding members actually gave thought individually or collectively to how they would approach the interaction with Mr. Dziekanski as opposed to simply reacting to the situation as it unfolded. The statements of the members do canvass other possible use of force options, but none of the members stated that they coordinated their thoughts as they approached the YVR terminal.
As noted elsewhere in this report, Superintendent Rideout, then OIC of the IHIT unit, was interviewed by the Commission. During that interview he categorically denied that IHIT had any information pertaining to the allegation fuelled by an e-mail written on November 5, 2007 by RCMP Chief Superintendent Richard Bent, (then) Assistant Criminal Operations Officer (Contract) for British Columbia to the Criminal Operations Officer, Assistant Commissioner Al Macintyre, in which Chief Superintendent Bent stated that he had spoken with Superintendent Rideout and IHIT was aware of conversation among the responding members concerning the intent to deploy the CEW upon arrival.
During the interaction with Mr. Dziekanski, Constable Bentley extended his baton. Corporal Robinson withdrew his baton from its holster but did not extend it. He said that he was considering using it, but did not intervene or countermand him when Constable Millington withdrew the CEW from its holster. Constable Rundel took no overt defensive action. None of the members believed OC spray to be a viable option in the circumstances.
As I have noted in this report, real time incidents unfold very quickly and I do not expect responding members to take a collaborative approach to an incident that demands unilateral action. In this incident, however, it was open to one member to take control; that did not happen. Taking control is a duty that should have fallen to Corporal Robinson as shift supervisor and the senior member at the scene.
The constables all had between one and a half and just over two years service and were at that time posted at YVR (where one would anticipate that the number of calls requiring the members to deal with violent persons would be lower than for an average General Duty member posted, for example, in the City of Richmond). As a result of their junior service, mentoring and training was particularly important if they were to respond adequately to calls where violence may ensue.
I have raised these general concerns (in other contexts) with the RCMP previously.Footnote 32
The failure of Corporal Robinson to take control of the scene, communicate with and direct the more junior and inexperienced members negatively manifested itself throughout the interaction with Mr. Dziekanski.
The members who responded to the complaints involving Mr. Dziekanski have provided their version of the events of that evening in a number of fora. They have provided their handwritten notes of the events, they provided verbal statements to IHIT investigators, Constable Millington completed a Form 3996 (CEW Usage Report)Footnote 33 and each has given evidence before the Braidwood Inquiry.
Given that Constable Millington had completed his RCMP approved CEW training in July 2007, only three months prior to the YVR incident, it is foreseeable that Constable Millington's training would have been relatively fresh in his mind. He testified that his CEW training taught him that the CEW has been extensively studied as a non-lethal weapon and that the effect of a CEW is much less onerous than a heart pacemaker or defibrillator. He was also taught that the CEW in animal testing showed insignificant effects on heart rhythm and blood pressure. The result of such training might well have been that Constable Millington was more inclined to deploy the CEW because of the position of the RCMP that the CEW is an effective, relatively safe and less harmful means to achieve an end.
During Braidwood Inquiry testimony in particular, the members relied on the fact that they responded as they had been trained. Undeniably, training does inform the response demonstrated by the members. Implied in this rationale is that the members take the position that "I was only following instructions." That argument cannot stand. Training provides the basis for the response, but the members responding are required to apply reason and discretion to the application of the training response. Interestingly, the Instructor Notes in the CEW training manual stipulate that the CEW is not a substitute for common sense and good judgement.
When tracked against the Pritchard video, the recollections of the members fall short of a credible statement of the events as they actually unfolded. For example, each of the four members indicated that they felt threatened and spoke of the combative stance of Mr. Dziekanski. Each recounted that Mr. Dziekanski became aggressive and moved toward the RCMP members. No combative stance or movement toward the members, aggressive or otherwise, by Mr. Dziekanski can be detected in the video.
The statements provided by the members are sparse in terms of detail of the events and the thought processes of the members as events unfolded. In response to numerous questions from IHIT investigators, the members stated that they could not recall various aspects of the YVR incident. I have reviewed their evidence during the Braidwood Inquiry and I do not find that this evidence has mitigated or rehabilitated their initial statements.
I have concerns with the fact that the members met together at the YVR sub-detachment office following the incident prior to being interviewed by IHIT investigators. I am concerned that they also met as a group and that Constable Millington met privately with Corporal (now Staff Sergeant) Mike Ingles, the Staff Relations Representative (SRR), prior to IHIT involvement. I note that the SRR has indicated that his rationale for meeting with the involved members prior to IHIT investigators was his concern for their emotional well-being. The SRR has indicated that he did not discuss any details of the incident with the involved members on the night of the incident or at subsequent meetings he had with them.
As I have discussed in the section of this report titled Members' Notes, I have concerns with the quality and extent of notes maintained by the involved members. Similarly, I have concerns with the quality of the notes made by the SRR. The SRR's notes with respect to the morning of the incident (October 14, 2007) and his meeting with the four involved members consist of one page and one line on a second page in a small police notebook. The SRR kept no notes at all of his subsequent meetings with the involved members.
The SRR chose to quote verbatim the words of Corporal Brassington of IHIT when he asked the involved members for their statements, but he neglected to write down any of the advice he provided to the four members at the YVR sub-detachment office pertaining to their duty to give an accounting of their actions or a formal statement to IHIT investigators.
Investigative basics are that witnesses should be separated immediately to remove the potential opportunity for them to tailor their evidence or to concoct a version of events. Meetings such as the meeting with Corporal Ingles concern me because of the potential for inappropriate influence or involvement in an investigation. This aspect is discussed further in the section (below) titled Statements from RCMP Members.
The result of the foregoing is that because of the lack of detail in recounting the events coupled with their meeting together and with the SRR, the credibility of the members and the degree of reliance that I am able to attach to their versions of the events is considerably diminished.
I note that in the evidence given by each of the members during the Braidwood Inquiry, each has stipulated that aspects of their accounts of the events surrounding the death of Mr. Dziekanski were incorrect. To be clear, I am aware of no evidence to confirm that any aspect of the members' accounts of the events was concocted, that the members colluded in their accounts or that they were being intentionally deceptive.
I do not accept as accurate any of the versions of events as presented by the involved members because I find considerable and significant discrepancies in the detail and accuracy of the recollections of the members when compared against otherwise uncontroverted video evidence. In their statements, the members indicated in responses to numerous questions that they could not recall the detail of the events as they unfolded. The fact that the members met together and with the SRR prior to providing statements causes me to question further their versions of events.
The conduct of the responding members fell short of that expected of members of the RCMP by the Canadian public and by RCMP policies. The members demonstrated no meaningful attempt to de-escalate the situation, nor did they approach the situation with a measured, coordinated and appropriate response.
The members failed to adequately comply with their training in CAPRA and IM/IM to assess the behaviour of Mr. Dziekanski, and therefore the risk posed by him. As a result, the level of intervention went beyond what was necessary and acceptable, contrary to the RCMP's IM/IM and CAPRA model.
Because the RCMP positions the CEW as an intermediate weapon and trains its members that it is appropriate to use the CEW in response to low levels of threat because it is a relatively less harmful means of controlling a subject, the responding members did not fully appreciate the nature of the CEW as a weapon and it was resorted to too early.
Allegation 1 – RCMP Conduct and the Death of Mr. Dziekanski
This part of the report will address what I consider to be the secondary aspects of the interaction between the responding RCMP members and Mr. Dziekanski. For a more complete discussion of the issues, please see the appendices as referenced in the report.
It is incumbent on civilian police oversight agencies to ensure that investigative scrutiny is provided in an even-handed and objective manner. To that end, I have carefully reviewed the conduct of the RCMP members who responded to the complaint involving Mr. Dziekanski at YVR. In addition, I have carefully reviewed the Vancouver IHIT investigation of the death of Mr. Dziekanski to assess the issues relevant to my complaint.
The RCMP members of the Integrated Homicide Investigation Team (IHIT) involved in the investigation of the death of Mr. Dziekanski had the benefit of time and the ability to systematically conduct their investigation. The first responders, the four RCMP members who attended the scene, did not have the luxury of taking a protracted amount of time to verify facts or assumptions.
The public expects that both first responders and subsequent investigators will receive sufficient training and instruction to ensure that they are aware of and comply with applicable legislation and policies. The public also expects the guiding documentation and policy to be reasonable.
Nature of the CEW
The CEW is a prohibited firearm.Footnote 34 The Commission has been steadfast in its position that when used appropriately, the CEW can be an effective tool for the RCMP. The Commission has also maintained that the CEW causes intense pain, it may exacerbate underlying medical conditions and it has been used in situations where it is not justifiable nor in accordance with RCMP policy (known as "usage creep").
Conversely, claims have been made from various quarters that the CEW is a viable alternative to lethal force, that its use results in a lowered risk of injury to the responding police officers and to the subject of the CEW and that it is, in effect, a much more humane way of effecting control over an individual who is resistant to arrest or control.
Juxtaposed against these claims is the reality that because the CEW can also be considered a pain compliance tool, the Canadian Charter of Rights and Freedoms (the Charter) may become operative because of the nature and manner of deployment of the CEW in some circumstances. The courts have held that use of the CEW in cruel and unusual circumstances offended various sections of the Charter and amounted to an abuse of process, resulting in stays of the criminal proceedings against the accused.Footnote 35
The CEW may be deployed in two modes–probe and push stun. Probe mode refers to the discharge of the weapon by firing a cartridge containing probes which lodge in the subject's body and are connected to the CEW by means of electrical wires. Push stun mode refers to the electrodes of the CEW being placed directly against the subject.Footnote 36
Overarching all of the foregoing is the question of whether police officers appreciate the nature and quality of the pain being dispensed. As discussed in this report, an issue the members appear not to have contemplated is whether the application of a pain compliance technique was justified in this situation. Notwithstanding the fact that the CEW is a prohibited firearm, the IM/IM as it existed at the time of the death of Mr. Dziekanski categorized the CEW as an intermediate level use of force option in the same genre as OC spray.Footnote 37
The Course Training Standard (CTS) for the RCMP CEW course allows for voluntary exposure of candidates to a CEW discharge, but the allowable time limit is two seconds, although some members have undergone the full five-second cycle. The discharge of a CEW is a full five seconds upon initial discharge; however, it can be disrupted by the user.
As discussed in this report at Appendix K, the output of some TASER® devices was questioned in a study commissioned by the Canadian Broadcasting Corporation (CBC) and published on December 2, 2008.Footnote 38 In addition, the Government of British Columbia has conducted testing on a number of its Taser Model M26 CEWs and found that:
...80% of the devices failed to operate within the manufacturers specifications. The results also showed that 90% of these units produced less electrical output than would be expected, potentially presenting both public and officer safety risks.Footnote 39
As a result, the RCMP on June 1, 2009 withdrew approximately 1,600 M26 CEWs from service nationally pending testing and/or replacement of some units with the newer Model X26. The RCMP has also conducted independent and random testing of some of its CEWs, as have some provinces.
TASER International training documentation notes that no deaths have been attributed to the TASER® but suggests that in any situation in which a person is displaying signs including bizarre or violent behaviour, breathing irregularities or loss of consciousness, medical assistance should be sought immediately.Footnote 40 This suggestion is further supported by three TASER International training bulletins issued in 2005, 2006 and 2007.
Policy has consistently recognized the need to assess other means of intervening to calm or subdue a suspect, and has required from the outset (absent an operational situation which would preclude such a step) that members identify themselves as peace officers and issue a warning prior to deploying the CEW.Footnote 41
The RCMP CTS for the CEW User CourseFootnote 42 was created in July 2001 and amended in May 2002 and October 12, 2005. The RCMP CEW course is 16 hours in length. The CTS indicates that this amount of time allows instructors to teach the necessary material and provides time for practice and scenario-based training.
The RCMP appears to accept the proposition that the CEW is a less harmful and reliable means of controlling individuals who fall within the parameters of acceptable CEW usage. In support of this position, the RCMP often relies on studies funded by TASER International which support this proposition. The Commission has noted various issues with TASER International-funded methodological research, specifically but not limited to, that the manufacturer appears to make unsubstantiated claims that are difficult to independently verify, their use of small control groups of healthy volunteers which does not reflect operational realities, and a general lack of wholly independent research.
Overarching the foregoing is the issue of quality control. From the time of the initial roll-out of CEWs in 2001, RCMP policy,Footnote 43 until it was removed in the August 8, 2007 Operational Manual (the version in effect at the time of the death of Mr. Dziekanski) required that:
The Senior Armourer will be responsible for:
- maintaining a current record of all the CEWs acquired by the RCMP;
- maintaining a quality assurance program for the testing and evaluation of the CEWs and munitions; and
- replacing malfunctioning CEWs.
Notwithstanding the fact that the requirement to implement a quality control process was removed from policy, the Commission specifically asked the RCMP to identify the process through which it maintains quality control over its CEWs.
The RCMP responded that essentially, the only ongoing quality control process with respect to CEWs is that they are examined when first received by the RCMP Armourer in Regina, Saskatchewan, prior to distribution across the country. The examination does not assess the adequacy or consistency of the voltage delivered, but considers questions such as whether the unit is registered with a correct serial number, the battery pack fits properly, the internal clock is set to Greenwich Mean Time and the sights are aligned. A spark test is performed, but this is done by hand to visually ensure that a spark is present between the electrodes. No assessment of the actual voltage delivered by the unit takes place.
The response does not indicate that CEWs are periodically or routinely returned to the Armourer for voltage testing; therefore, my assumption is that they are not. Policy at the time of the YVR incident required that the CEW be returned to the Armourer if it is found to have malfunctioned or failed in operational usage, or if a download of data is required as part of an investigation.Footnote 44
Although CEWs have currently been subjected to independent testing as part of an ongoing internal RCMP audit (see Appendix L, titled CEW Training), I find the RCMP process to be an inadequate level of quality control. I would expect an adequate level of quality control to include an assessment of the ability of the weapon to function within standard parameters when it is first received. I would also expect that CEWs would be subject to regular technical testing to ensure their continued reliability.
The RCMP should review the CEW quality assessment program as currently in effect and consider whether it should be enhanced to ensure that a high degree of confidence may be placed in the performance of in-service CEWs.
Evolution of RCMP CEW PolicyFootnote 45
The CEW was first approved for RCMP use in 2001. Policy governing the use of the CEW was implemented by the RCMP and that policy has received a number of amendments over time.Footnote 46 In the most recent revision, issued by the RCMP on January 27, 2009, policy was amended to recognize the high risk of death to acutely agitated or delirious personsFootnote 47 and to clarify that RCMP members are expected to proactively request medical assistance if the CEW is deployed on such persons.Footnote 48 Further, the RCMP Commissioner has determined that the CEW is only to be used where it is necessary to do so in circumstances of threats to officer or public safety.Footnote 49
Until the current iteration of the RCMP CEW policy, the concept of excited delirium was included in CEW policy. RCMP Commissioner Elliott indicated on January 6, 2009 during a radio interview that he has asked for the term excited delirium to be removed from RCMP policy. The rationale was that RCMP members should not be expected to make what amounts to medical diagnoses when responding to a situation and determining the appropriate use of force option required. As noted, the term has now been expunged from the revised RCMP Operational Manual issued in January 2009Footnote 50 and replaced with a reference to agitated or delirious persons, which is intended to more broadly capture a large group of persons displaying behaviour posing a risk to themselves, the police or others.
Medical Treatment Post CEW
Medical treatment for anyone who has been the subject of the deployment of a CEW has been contemplated pursuant to RCMP CEW policy since the inception of the weapon. Such treatment is at the discretion of the member(s) involved and is not mandatory.Footnote 51 The initial supposition appeared to be that the subject will be lucid and ambulatory subsequent to CEW usage in that the policy requires the RCMP member to transport the subject to a medical facility, whenever possible, for examination and to record any injuries or other observable medical or physical afflictions caused by the CEW.Footnote 52 The policy in place at the time of the YVR incident recognized the severity of the potential state of agitation of the subject prior to deployment and the need to provide medical care, particularly in those circumstances; current policy requires intervention of professional medical personnel when warranted.Footnote 53
Medical caveats such as this do not serve to underscore in the minds of RCMP members that the CEW inflicts great pain on the recipient and that it is a potentially lethal weapon. In my view, if public confidence in the ability of the RCMP to use the CEW appropriately is to be maintained, the RCMP must demonstrate that its members use the CEW judiciously and with discretion. The weapon must not be used precipitously. To achieve this goal, I believe that the RCMP must amend its training regimen to underscore the dangers inherent in the use of the CEW by members.
As I stated before the Braidwood Commission:
If the state or its representatives want to introduce a device for use against a member of the public, it bears the onus of ascertaining what level of risk to the public flows from the use of the device. If there's any ambiguity and uncertainty, that doubt should be resolved in favour of the citizen.
At the time of the YVR incident (October 2007), the CEW was classified by the RCMP as an intermediate device. RCMP policy at that time was that weapons in this category could be used against subjects who exhibited resistant behaviour or more threatening behaviour, such as being combative.
When members are faced with situations posing the risk of death or grievous bodily harm, they are trained that the CEW is only appropriate if another member can provide lethal over-watch. This means that at least one other member should have a gun ready to shoot in case the CEW misfires or is ineffective and the threat is not neutralized.
In the YVR incident, three other RCMP members were present and were armed with their service pistols. The issue of lethal over-watch was not canvassed in statements taken from the responding RCMP members during the IHIT investigation, as it was not relevant to the circumstances.
Autopsies conducted on persons who have died proximate to CEW usage and scientific studies have not identified a causal link between the CEW and death. I am of the view that although there exists a paucity of scientific evidence pointing to the CEW being the cause of death or a prime contributing factor thereto, from a public policy perspective we must be circumspect. The RCMP has accepted in policy that the CEW may pose a risk to seriously agitated persons; therefore, the assumption should be that the CEW may cause harm as opposed to the view commonly held among police that the CEW is a less harmful and acceptable means of effecting an arrest.
I am not suggesting that the CEW should not be used. I am suggesting, however, that it only be used in circumstances in which such use is justifiable and necessary. The assumption should be that the CEW poses inherent risk and unless and until it can be demonstrated clearly that it does not, the bias should go to less usage, rather than more.
Appropriate Use of the CEW
Crucial to the analysis of the appropriate use of the CEW is an awareness and understanding that the CEW delivers intense pain to the recipient of the deployment whether the CEW is used in probe or push stun mode. Because of the nature of the weapon, therefore, its use must be justifiable, judicious and proportional to the circumstances.
I have made my position on this issue known for quite some time. In my December 2007Footnote 54 interim report on RCMP use of the CEW, I stated:
The tragic occurrences associated with CEW use in the past few months have raised the level of public concern regarding the weapon. The RCMP relies upon studies that speak to the relative safety of CEWs as a less lethal technology. However, many of these same studies note the lack of research in relation to "at risk groups." It is imperative that research be continued to establish the safety levels for "at risk groups" and to determine whether, by virtue of the very symptomology exhibited by these groups (i.e. drug use or psychiatric disorders), they may be exposed to a disproportionate number of police interventions where CEW use may be deemed appropriate.
Further, an appreciation of the level of pain associated with the CEW is crucial to ensure not only the appropriate use of the weapon but also the avoidance of what the Commission has dubbed "usage creep," i.e. the trend toward using the CEW in circumstances for which its use was not authorized by RCMP policy. As I also noted in my December 2007Footnote 55 report on the use of the CEW:
The current approach by the RCMP clearly illustrates a shift in permissible usage from the original intent in 2001, which was more restrictive in that the weapon was to be used to subdue individual suspects who resisted arrest, were combative or who were suicidal. The Commission refers to this expanded and less restrictive use as "usage creep." This has resulted in deployment of the weapon outside stated objectives as illustrated by cases that have been reviewed by the Commission over the past six years where the individuals have exhibited behaviours that were clearly non-combative or where there was no active resistance.
TASER International states that the CEW in probe mode does not rely on pain to achieve compliance. The documentation with respect to the effects of CEW usage conveys that the pain component of the CEW is more benign than it really is. Virtually every person who has been the subject of a CEW deployment, whether voluntary or involuntary, refers to the experience as being extremely painful (as noted below). RCMP training pertaining to the CEW deals with the pain inflicted by the weapon in a relatively narrow and perfunctory manner.
As I noted in my June 2008 final report on the use of CEWs by the RCMP:Footnote 56
When used in probe mode, it is rare that more than one (1) cartridge is fired and 66 percent of the time the weapon is cycled only once. Conversely, push stun is the mode more apt to be used multiple times. When push stun mode alone is used, it is used two or more times on 40 percent of occasions. This is significant and confirms a concern raised repeatedly by the Commission that push stun mode is the most susceptible usage subject to usage creep.
This is true in the case of Mr. Dziekanski also. The CEW was used in probe mode more than the norm. In addition, I find that the manner in which it was used in push stun mode was inappropriate. This type of inappropriate usage was identified in my earlier reports on the CEW.
In its training sessions for police "train the trainer" personnel,Footnote 57 TASER International teaches that the concept behind the CEW in probe mode is that it incapacitates the central nervous system to achieve its goal of incapacitating the subject. The training indicates that the CEW does not rely on pain to achieve compliance. It overwhelms the central nervous system and achieves incapacitation.
The IM/IM describes intermediate devices as including OC spray and the CEW.Footnote 58 Training provided not only to RCMP members, but to CEW users in general, reinforces the notion that the CEW is a safe and effective means of controlling a person.Footnote 59 The question of relative safety to the recipient is not as clear, nor is it clear that police are cognizant of the fact that the CEW is, first and foremost, a means of achieving compliance by debilitating the recipient through neurological muscle control and pain in probe mode and solely through the means of a powerful localized pain stimulant when deployed in push stun mode.
The exercise of appropriate discretion is crucial in the decision to use the CEW. Some police officers do not appear to adequately comprehend the nature of the CEW as a weapon, i.e. the extreme level of pain associated with the use of the CEW or the risk to the health of the subject because the training provided to them does not require them to take such analyses into account at the time of deploying the CEW.
In light of the foregoing, my view with respect to the pain inflicted by the CEW, as expressed in my December 11, 2007 Interim Report on the RCMP Use of the Conducted Energy Weapon,Footnote 60 has not changed:
Of note, regardless of the mode, the subjects will experience pain. However, little attention appears to have been paid to the level of pain induced by CEW application. The use of CEWs was reviewed in R. v. Hannibal, 2003 BCPC 0504. In that case, in which an RCMP member was charged with assault for an incident in August 2001, Judge Challenger commented, "No studies have been done with respect to the subjective experience of being tasered in comparison to conventional empty hand control (soft) techniques." However, an Amnesty International report contained the following anecdotal references:
According to [TASER International] they are one of the few non-lethal weapons effective in causing incapacitation without physiological injury. They have pointed out that any pain involved is transient, with no after-effects. However, officers subjected to even a fraction of the normal taser discharge during training have reported feeling acute pain:
"Bjornstad, who was jolted for 1.5 seconds as part of his training, said all of his muscles contracted and the shock was like a finger in a light socket many times over. 'who [sic] has experienced it will remember it forever...You don't want to do this. It's very uncomfortable...and that's an understatement.'" (The Olympian, 14 October 2002)
"It's like getting punched 100 times in a row, but once it's off, you are back to normal again." (The Olympian 2 March 2002)
"It felt terrible." "It hurts. I'm going to think twice before I use this on anyone." (two officers quoted in the Mobile Register 8 April 2002)
"It is the most profound pain that I have ever felt. You get total compliance because they don't want that pain again." (firearms consultant, quoted in The Associated Press 12 August 2003)
"They call it the longest five seconds of their life...it's extreme pain, there's no question about it. No one would want to get hit by it a second time." (County Sheriff, quoted in The Kalazazoo [sic] Gazette, Michigan, 7 March 2004):
In assessing the negative aspects of CEW deployment Judge Challenger wrote: "The RCMP and other forces should consider the taser's potential for superficial burning and tissue damage which can create scabbing and scarring. The taser creates extreme pain and can create instant, complete incapacitation. Conventional pain compliance techniques can be carefully controlled by the officer administering them. The amount of pain inflicted by the taser cannot be adjusted [emphasis added].'
The pain component of CEW use remains a subject largely left to anecdotal commentary and not sufficiently explored to assist in determining the appropriateness of its use in law enforcement interventions.
Statistically, CEW usage results in relatively few serious injuries or deaths when compared to the number of deployments. What statistics do not take into account, however, is the nature of the CEW as a weapon and whether the use of the CEW was appropriate in the circumstances. I believe that the equally pertinent study, therefore, should not be to examine how many people have been seriously injured or have died during or subsequent to CEW deployment, but whether the use of the CEW was appropriate in the circumstances of the deployment.
Given the injuries that have occurred subsequent to deployments of the CEW, the onus of demonstrating that the CEW is a viable response in the particular circumstances of its use must rest with the police. Pointing to statistics to show that in most deployments no serious or lasting injury is sustained by the recipient is not sufficient. Justification of its use must include an appreciation of the nature of the CEW, i.e. that the level of pain inflicted and the potential for serious bodily harm or death to the recipient was appropriate and necessary within the confines of a specific set of circumstances.
As noted above, on January 27, 2009, the RCMP amended its policy stipulating that the CEW may only be used in circumstances in which the RCMP member, after considering the totality of the circumstances, perceives a threat to his or her safety or the safety of a member of the public.Footnote 61 However, it is not clear how members will interpret the reference to "threats". This change, which results in less clarity in delineating the appropriate use of police weapons, leaves the Commission unable to determine whether this amendment will raise the bar to the level contemplated in the Commission's recommendation made in its earlier reports to the RCMP. Rather, it relies too heavily on a member's subjective appreciation of events without laying the objective policy-based foundation for which to assess the conduct. The Commission's concern with this is that the lack of clear guidelines may well continue to contribute to "usage creep" institutionally and to the individual cases of inappropriate CEW use that have been reviewed and commented upon by the Commission, including this incident.
Compounding this issue are the recent pronouncements by the Provinces of British Columbia and Alberta regarding their respective positions on the threat threshold to be adhered to by police officers that must be present before a CEW can be deployed. Particularly, it is unclear whether the RCMP's new policy on this threshold can, or will be reconciled with these provincial standards. Additionally, Commissioner Braidwood was unequivocal by stating that a clear and imminent threat of bodily harm must be present before a CEW is deployed. This appears to be a significantly higher threshold that the RCMP's current policy contemplates. It is unclear what amendments to the applicable RCMP policy will be required in order to adhere to these provincial policies while at the same time maintaining a national standard consistent for all members across the RCMP.
While I am in agreement with the RCMP's approach of providing more stringent controls on the use of the CEW, I am not convinced that its new threshold meets that test. Further, the necessary articulability with respect to the use of this weapon must include both objective and subjective elements. The member must lawfully be in the place where the CEW is deployed, he or she must have a subjective belief that the potential harm caused by the CEW is reasonable in the circumstances, and the conduct of the member must be reasonable in the eyes of an independent and objective person presented with the same set of circumstances.
RCMP members must be trained that they should be more circumspect in resorting to the CEW. While RCMP training does include a voluntary exposure to the CEW, such exposure is conducted, obviously, in controlled circumstances to ensure the safety of the member being exposed to the voltage, and in a non-confrontational situation. Clearly, field circumstances cannot be easily replicated.
The RCMP should continue to be involved in and stay abreast of current independent research on the use and effects of the CEW.
Notwithstanding the fact that the RCMP has (as of January 2009) amended its policy such that the use of the CEW is to be used in response to a threat to officer or public safety as determined by a member's assessment of the totality of the circumstances being encountered, the RCMP should clarify for its members and the public what the appropriate circumstances for using the CEW are and what threat threshold will be utilized to assess the appropriateness of such use.
The RCMP should consider a review of its training to ensure that its members are well versed in the potentially dangerous nature of the weapon and to ensure that training provided to members assists them in appropriately assessing the circumstances in which deployment of the CEW is justified, bearing in mind the degree of pain inflicted on the subject during the CEW deployment and the potential outcome of such deployment.
Appropriateness of the RCMP Response
To reiterate, the Chair-initiated complaint as it relates to the interaction between the RCMP members and Mr. Dziekanski concerned compliance by the responding RCMP members with policies, procedures, guidelines and statutory requirements pertaining to the interaction with Mr. Dziekanski. Further detail and analysis of those policies and requirements are set out below.
As previously noted, the decision as to whether or not criminal charges were warranted in these circumstances has been addressed by the British Columbia Criminal Justice Branch and consequently is not the subject of this report.
Applicable RCMP Policy
Incident Management/Intervention Model
The RCMP utilizes the IM/IM to train and guide members in the use of force,Footnote 62 promote risk assessment and depict various levels of resistance, behaviours and reasonable intervention options.Footnote 63 At the time of Mr. Dziekanski's death, the IM/IM was predicated on the following seven principles:
- The primary objective of any intervention is public safety.
- Police officer safety is essential to public safety.
- The intervention model must always be applied in the context of a careful assessment of risk.
- Risk assessment must take into account: the likelihood and extent of life loss, injury and damage to property.
- Risk assessment is a continuous process and risk management must evolve as situations change.
- The best strategy is to utilize the least amount of intervention to manage the risk.
- The best intervention causes the least amount of harm or damage.
I believe that these final two principles are crucial to policing as provided by the RCMP, but in order for RCMP members to intervene appropriately, they must be trained in and cognizant of the nature of the various means of intervention available to them. As I have indicated in this report and in other reports I have issued, with respect to CEW deployment I do not believe that RCMP training teaches a realistic awareness of the nature of the CEW as a weapon. Accordingly, RCMP members do not have an appropriate awareness of the potential for harm and therefore the overall nature of the intervention they may undertake.
The IM/IM was amended by the RCMP in May 2009. The seven principles have been altered to six, as follows:Footnote 64
- The primary duty of a peace officer is to preserve and protect life.
- The primary objective of any intervention is public safety.
- Peace officer safety is essential to public safety.
- The IMIM is consistent with federal statute law and common law authorities and in no way replaces or augments the law.
- The intervention model must always be applied in the context of a careful assessment of risk, taking into account the likelihood and extent of life loss, injury, and damage to property as a result of the intervention.
- Risk assessment is a continuous process and risk management must evolve as situations change.
I note that the final two principles enumerated in the IM/IM as it existed at the time of the death of Mr. Dziekanski have been excised from the current IM/IM. Although one might argue that the previous principles are subsumed in the current IM/IM, I am of the view that the principles as previously set out clearly capture the need to intervene to the lowest possible extent that will enable RCMP members to carry out their duties safely (taking into account the need to ensure the safety of both the police and the public) and effectively.
Further, I am of the view that despite the fact that using the least amount of force necessary is articulated in RCMP training, it should be emphasized that the primary goal should be de-escalation.
I believe that the principles espoused by Sir Robert Peel in 1829 are still relevant today. During my presentation to the Braidwood Commission I articulated four pillars upon which I believe public confidence in the police are founded. I stated:Footnote 65
Policing in Canada is built upon the guiding principles of Sir Robert Peel. In particular, four principles strike me as paramount, and are as important today as they were to Peel in 1829.
First is the fact that the police can only perform their duties if they have the public's approval of their actions. Second is the reality that the police are the public, and the public are the police. This principle means that the police are acting as our agents in carrying out a general social obligation to preserve the peace.
Third, the police must use physical force only to the extent that is necessary to preserve public order. Finally, the police rely on the willingness of public cooperation to undertake their duties.
Use of force experts, who teach police officers the concepts involved in determining risk and the appropriate level of response, have provided comment with respect to the use of force against Mr. Dziekanski.Footnote 66 My difficulty with these comments is that I see a circular logic at work. Sergeant Brad Fawcett of the Vancouver City Police, and Corporal Gregg Gillis of the RCMP are the use of force experts who commented with approbation on the appropriateness of the force used by the responding members. These are the same persons who regularly lecture and train the police. From an objective point of view, therefore, a potential bias for the use of force training as provided to police is inherent and must be recognized. As a result, in the present case I have concerns that Sergeant Fawcett and Corporal Gillis gave input with respect to the appropriateness of the force used by the responding members.
If RCMP training is such that the CEW use is deemed appropriate when faced with the lowest level of risk presented by the subject's behaviour, it will accordingly be resorted to sooner and more often by RCMP members.Footnote 67 That is, police officers may tend to resort to the CEW earlier in the mistaken belief that it is an appropriate response.
If a police officer acts as he or she has been trained, the actions of that officer may subsequently be justified by the trainer according to that training model. If the training model is in error, however, justification does not serve to make the officer response correct. In the matter under discussion, I do not believe that sufficient empirical data are available to accept the position of the RCMP that the CEW should be emphasized as a less harmful weapon.
The fact that a trainer or use of force expert says that a member acted according to policy does not make the actions of the member correct if the weapon is in reality more dangerous than training portrays it to be and, therefore, the training policy itself is flawed.
Through the IM/IM (as it then read) RCMP members are trained that they should use the least amount of force necessary to achieve the goals of policing, ensure public safety and minimize the risk and damage. Consequently, the RCMP members were required to assess Mr. Dziekanski's behaviour and the attendant level of danger/risk he posed to himself, to the RCMP members and to the public at large, and take the appropriate steps to assess the situation correctly to manage the arrest and take Mr. Dziekanski into custody by employing the minimum amount of force required.
In their training curriculum at the RCMP Training Academy (Depot Division, Regina), cadets are taught the gradations of officer intervention within the IM/IM framework, beginning with officer presence and verbal intervention, as well as CAPRA-based skills in problem solving. These aspects of training are focused on developing the necessary verbal skills which police officers rely on when confronting potentially volatile situations. In addition, cadets receive training on negotiation and mediation skills and at the mid-point of their Depot training they begin to make use of these skills in role play scenario-based interactions with actors posing as members of the public.
The goal is to teach RCMP officers to respond appropriately and to be able to recognize the need for and use of appropriate tools to de-escalate a situation before it spirals out of control.
Although cadets receive such training, I am not aware of ongoing in-service training for RCMP members to retain awareness of and continued proficiency in such de-escalation techniques.
Use of Force Report
On March 3, 2008, a Use of Force Report was provided to IHIT investigators by Sergeant Brad Fawcett, a member of the Vancouver Police Department.Footnote 68
The involvement of Sergeant Fawcett came about due to a November 23, 2007 letter from Superintendent Wayne Rideout, Officer in Charge of IHIT, to Chief Constable Jim Chiu, Chief of the Vancouver Police Department. Superintendent Rideout requested Sergeant Fawcett's services to provide an expert opinion on the use of force used by the four involved members. The letter requesting Sergeant Fawcett's assistance did not specify the scope of review to be undertaken by Sergeant Fawcett, nor did it stipulate whether Sergeant Fawcett was to gauge the actions of the four RCMP members against RCMP policy.
For a number of reasons set out in Appendix O, I found Sergeant Fawcett's report not to be particularly informative and therefore I have not relied on it.
Although IHIT did engage the services of a use of force expert, that expert was not provided with adequate direction in terms of the questions to be considered, the scope of his work or the terms of reference he was to consider.
A secondary issue with respect to the use of the CEW concerns the need to perform a spark test when the weapon is signed out for use and the documentation of such a test post-incident. RCMP members are required to complete a CEW Usage Report (Form 3996) after an incident involving the CEW. Constable Millington did file such a report; however, the format of the report (Form 3996) does not require a member to indicate whether the CEW was spark tested prior to deployment. RCMP Operational policy states that a spark test is the only approved and reliable method to assess the state of the NiMH batteries and the functionality of the CEW.Footnote 69 According to the CEW download report, Constable Millington did perform such a spark test when he signed out the weapon.
TASER International, the manufacturer, has indicated that a "spark test" is the sole means in the field to ensure that the CEW is operating properly. A spark test should be conducted each time a CEW is signed out.
The RCMP is currently pilot testing a form known as the Subject Behaviour/Officer Response (SB/OR) to capture data pertaining to any use of force by an RCMP member, including the threatened use, un-holstering or deployment of the CEW. I understand that the SB/OR will come into full use in 2010 and that the CEW Usage Report (Form 3996) currently in use will then be dispensed with.
As noted above, CEW practice at YVR was that the weapon is signed out by the member. The Commission asked for a copy of the control log sheet on which Constable Millington would have signed out the CEW used by him on October 13/14, 2007. The RCMP advised that the control log sheet was never seized as evidence during the IHIT investigation, nor has it surfaced since. The RCMP believes that the sheet has likely been destroyed as part of its document management processes.
The RCMP should:
- Amend its Conducted Energy Weapon (CEW) Usage Reporting Form (Form 3996), to require that information concerning a spark test be captured as part of the CEW usage reporting process (or include such requirement in the forthcoming Subject Behaviour/Officer Response data base); and
- Edit its Operational policy to emphasize the importance of the spark test and clearly indicate that the spark test is mandatory to confirm proper functioning of the CEW.
Code of Conduct – Internal Investigation
Stemming, but separate from, the IHIT investigation into the death of Mr. Dziekanski, it was open to the RCMP to initiate an internal investigation into the actions of both the responding members and the media relations officers in order to ascertain whether disciplinary action was warranted. No such investigations were launched.
The authority to initiate such an investigation is pursuant to section 40, found in Part IV of the RCMP Act.Footnote 70
The relevant section of Part IV of the RCMP Act reads as follows:
40. (1) Where it appears to an officer or to a member in command of a detachment that a member under the command of the officer or member has contravened the Code of Conduct, the officer or member shall make or cause to be made such investigation as the officer or member considers necessary to enable the officer or member to determine whether that member has contravened or is contravening the Code of Conduct.
Because YVR is located within the bounds of the RCMP Richmond Detachment, it was within the authority of the Officer in Charge of the Richmond Detachment to order a Code of Conduct investigation. Subsequent to the conclusion of such an investigation, the decision then rests with the appropriate officer,Footnote 71 typically the Commanding Officer of the RCMP division in which the impugned member is serving, to decide whether or not formal, informalFootnote 72 or no disciplinary action is warranted.Footnote 73
The Code of Conduct of the RCMP is found at sections 38 to 58.7 of the RCMP Regulations, 1988.Footnote 74 For the purposes of this discussion, however, the obviously relevant portions of those Regulations which could have been considered by the OIC of the Richmond Detachment are:
39. (1) A member shall not engage in any disgraceful or disorderly act or conduct that could bring discredit on the Force.
(2) Without restricting the generality of the foregoing, an act or a conduct of a member is a disgraceful act or conduct where the act or conduct
- (a) is prejudicial to the impartial performance of the member's duties; or
- (b) results in a finding that the member is guilty of an indictable offence or an offence punishable on summary conviction under an Act of Parliament or of the legislature of a province (SOR/94-219, s. 15).
45. A member shall not knowingly or wilfully make a false, misleading or inaccurate statement or report to any member who is superior in rank or who has authority over that member pertaining to
- (a) the performance of that member's duties;
- (b) any investigation;
- (c) any conduct concerning that member, or any other member;
- (d) the operation of the Force; or
- (e) the administration of the Force. (SOR/94-219, s. 18.)
Clearly, section 39(1) above could be relevant if the conduct of the responding member(s) was considered to have brought disgrace or discredit on the Force. In light of the discrepancies between the versions of events reported by the responding members and the Pritchard video, the OIC could have considered whether the responding members knowingly or wilfully made false, misleading or inaccurate statements to investigators, contrary to section 45. The same rationale could be applied to the motivation for some of the comments made by Sergeant Lemaitre, the initial media relations officer (MRO).
The Commission has not been provided with information from the RCMP pertaining to whether such an investigation was considered in the wake of the death of Mr. Dziekanski.
Notwithstanding any recommendation I might make at this point with respect to a review of the decision not to conduct such an investigation, the outcome is moot in that section 43(8) of the RCMP Act stipulates that no formal disciplinary hearing into an allegation that a member has contravened the Code of Conduct may be initiated more than one year from the time the contravention and the identity of that member become known to the Commanding Officer of the region in which the impugned member is serving. The identities of the responding members and fact of the death of Mr. Dziekanski were known to the OIC of the Richmond Detachment and to the Commanding Officer from October 14, 2007.
The RCMP should review its processes and criteria with respect to the initiation of an internal investigation into the conduct of its members to ensure consistency of application across the country.
Each of the responding RCMP members had been certified in the use of the CEW. Constable Millington, who actually carried and deployed the CEW during the incident, was certified in July 2007. Corporal Robinson, the shift supervisor, had been qualified but his CEW certification expired in April 2006. Both Constables Rundel and Bentley held valid certificates in the use of the CEW.
At the time of the incident, RCMP policy required that members be re-certified in the use of the CEW every three years. That policy has now been altered, and members must now re-certify annually in the use of the CEW.Footnote 75
Notwithstanding Corporal Robinson's assertion during his testimony before the Braidwood Inquiry that his first aid certificate had lapsed in 2002, information provided by the RCMP indicates that each of the responding members held a valid certificate in first aid. For a full discussion of the certifications held by the responding members, please see Appendix M.
Allegation 2 – Investigation of Mr. Dziekanski's Death
This part of the report will address what I consider to be the primary aspects involving the investigation by IHIT of the death of Mr. Dziekanski. For a more complete discussion of the issues, please see the appendices as referenced in the report.
According to its website, IHIT is:
responsible for investigating homicides, police involved shootings and in-custody deaths that occurred [sic] within the Lower Mainland areas policed by the RCMP, Abbotsford, New Westminster and Port Moody police departments.Footnote 76
Although the IHIT teams are considered integrated, i.e. investigators from each of the four police agencies mentioned above participate in IHIT investigations, the team investigating the death of Mr. Dziekanski consisted only of RCMP members.
Criminal Investigation or Coroner's Responsibility
Central to the IHIT investigation is a consideration of primary responsibility to conduct such an investigation. The IHIT investigators took initial responsibility for the investigation upon their arrival and began to process the scene, take statements and collect evidence. The Officer in Charge of IHIT, Superintendent Rideout, said during a December 2008 media briefing that initially the IHIT team was conducting a sudden death investigation on behalf of the Coroner's Office, under the authority of the BC Coroner's Act (presumably because IHIT was of the view that no criminal offence had been committed). During the Braidwood Inquiry, however, he said that:
... our first thought process was advancing this case as it unfolded to a Crown counsel and perhaps a criminal court. So we, as – as when we were tasked with this investigation, IHIT's responsibility was to conduct an independent investigation of ... the death of Robert Dziekanski at YVR.
Superintendent Rideout also explained at the Braidwood Inquiry that as at the end of October 2007 he felt there were insufficient grounds to conclude that any of the RCMP officers involved had committed a criminal offence in relation to the death of Mr. Dziekanski. In mid-November 2007, he wrote to the B.C. Coroner's Service to indicate that a criminal investigation into the death of Mr. Dziekanski was underway by IHIT and that the results of the investigation would be submitted to Crown counsel for a decision as to criminal charges.
RCMP news releases in the days following the death of Mr. Dziekanski indicated that the investigation was criminal in nature and being conducted under the aegis of IHIT.Footnote 77 On November 17, 2007 Deputy Commissioner Gary D. Bass, Commanding Officer of the RCMP's "E" Division (British Columbia) mentioned in a press release the ongoing IHIT investigation.Footnote 78
The IHIT never publicly relinquished jurisdiction to investigate the matter as a criminal investigation, and ultimately submitted a Report to Crown Counsel pertaining to the investigation. The submission of the Report to Crown Counsel allowed the British Columbia Criminal Justice Branch (BC Justice) to consider whether criminal charges against any of the responding members were appropriate. No charges were approved.Footnote 79
I am concerned that the nature of the investigation was not apparent to the investigators, i.e. whether they were conducting a criminal investigation or an investigation under the BC Coroner's Act. For example, investigators appear to have been of two minds with respect to the seizure of evidence. Exhibit reports were completed with respect to physical evidence (such as the CEW, probes and wires) at the scene which was directly related to the death of Mr. Dziekanski. Other evidence, such as the Pritchard video, was not seized but was "borrowed". Had the investigation been treated as a criminal investigation from the outset, however, IHIT investigators likely would not have been so ambiguous in their approach.
I note that early in 2009 the RCMP "E" Division began to consider a draft Memorandum of Understanding with the BC Coroner's Office and other police agencies in the province with respect to the provision of operational assistance under their respective mandates. If signed, this document will represent a significant step forward in achieving a coordinated approach to such investigations.
I reiterate my recommendation from my report on the Police Investigating Police (August 2009) that all RCMP member investigations involving death, serious injury or sexual assault should be referred to an external police force or provincial criminal investigation body for investigation. There should be no RCMP involvement in the investigation. If, however, the RCMP continues to investigate such matters, then I recommend that the RCMP implement clear policy directives that all investigations in which death or serious bodily injury are involved and which involve RCMP members investigating other police officers will be considered criminal in nature until demonstrated not to be.
Issues Involving the IHIT Investigation
I have concerns with respect to certain aspects of the investigative approach taken by IHIT and with information released to the public through the media.
Presence of Corporal Robinson at the Richmond Detachment Briefing
On October 14, 2007 an IHIT briefing was held at the Richmond Detachment. Present were the IHIT investigative team and media relations officers (MRO). At some point during the briefing, Corporal Robinson, one of the involved members, was present and related to the IHIT members his perception of events. As is noted in more detail below at Appendix S (Media Releases), it is possible that to some extent the information provided to the media by the MRO in the early days of the investigation was coloured by Corporal Robinson's input.
Staff Sergeant (then Sergeant) Attew, the IHIT team commander at that time, stated that he was not aware that Corporal Robinson was one of the four involved members or he would not have allowed Corporal Robinson to attend. Superintendent Rideout, who was not present at the briefing, has indicated that he would not have allowed Corporal Robinson to attend because of the obvious potential to taint the objectivity of the investigation. The Richmond Detachment MRO, Corporal N. Basra, was not present at the IHIT briefing, but stated that she would not have allowed an involved member to attend because of the possibility of inadvertently adopting a position advanced by that involved member which could then make its way to the media by mistake.
The responsibility to ensure that the integrity of the investigation was maintained fell to the senior IHIT member at the briefing. As team commander at the time, that was Staff Sergeant Attew.
Overarching the decision to allow Corporal Robinson to attend the IHIT briefing is the apparent lack of certainty on the part of IHIT investigators in the early stages of the investigation with respect to the nature of the investigation. When interviewed by the Commission, Superintendent Rideout took the position that the IHIT investigators had no evidence of a criminal offence having occurred, and therefore the incident was not initially treated as a criminal investigation. It is possible that information provided to the media could have been predicated on the same assumption, resulting in a more relaxed attitude by the MRO.
Corporal Robinson, as an involved member, should not have been permitted to attend the IHIT briefing held at the Richmond Detachment on October 14, 2007. Sergeant Attew failed to ensure that only appropriate RCMP members were present during the briefing.
The video taken by Mr. Pritchard at YVR of the incident involving Mr. Dziekanski was purportedly "borrowed" from him by Constable Patrick Mulhall, an IHIT investigator, on the night of the incident (October 14, 2007).Footnote 80 According to documents filed by Mr. Pritchard during his attempts to recover the video,Footnote 81 he was told by Constable Mulhall that the video was to be copied by the RCMP and that it would be returned to him within 48 hours. Constable Mulhall subsequently contacted Mr. Pritchard and informed him that the time of return could be one and a half to over two years (approximately) because it would be used at a Coroner's Inquiry. This information is confirmed in a note to file by Constable Mulhall. In the same note, Constable Mulhall indicated that the video was not returned because Superintendent Rideout, the Officer in Charge of IHIT, had decided that it should be retained pending completion of the investigation by IHIT. It was confirmed that Superintendent Rideout had made the decision to retain the Pritchard video on October 22, 2007 and that by October 19, 2007, most (not all) of the witnesses had been interviewed.
During his interview with the Commission, Superintendent Rideout stated that he believed that the video could have been seized, and not "borrowed", pursuant to provisions of the Criminal Code or the BC Coroner's Act. He was not able to offer an opinion as to why these provisions were not exercised.
Mr. Pritchard initiated legal proceedings to recover his video, which ultimately was returned to him prior to litigation taking place.
Given that the video was not initially seized from Mr. Pritchard but was obtained with his consent and acquiescence, the RCMP had no authority to retain the video when Mr. Pritchard asked for its return. If the video was considered to be seized, this fact should have been clearly communicated to Mr. Pritchard. Either way, it was unclear to Mr. Pritchard what the status of his property was.
I have reviewed the Vancouver Police Department policyFootnote 82 on obtaining video relevant to an investigation. I commend that organization for putting in place what I consider to be clear and practical policy on the issue. The RCMP may wish to consider this as a model for similar policy.
Given the proliferation of recording devices, it is anticipated that incidents in which RCMP members will seek to obtain private video or audio recordings will potentially occur more frequently in the future. Whether the police seize a video or audio recording of an event or obtain it on consent from a member of the public, the police must know and advise the public of the authority under which the video or audio recording is obtained. I recommend that the RCMP provide clarification for members with respect to obtaining video or audio recordings of an event.
The RCMP has been criticized with respect to certain statements made by its members in the media following the death of Mr. Dziekanski.Footnote 83 On November 13, 2007 the British Columbia Civil Liberties Association (BCCLA) made a complaintFootnote 84 to this Commission, pursuant to Part VII of the RCMP Act. The complaint contained a number of allegations with respect to some of the RCMP media statements made in the days following the death of Mr. Dziekanski and with respect to the possession of the Pritchard video by the RCMP. The BCCLA complaint also alleged that the RCMP provided a subjective version to the public of the events which led to Mr. Dziekanski's death.
As per process under the RCMP Act, the complaint was referred to the RCMP for investigation. In a report dated December 23, 2008 and signed by Chief Superintendent Rob Morrison, Officer in Charge of Operations Strategy Branch, "E" Division, Vancouver, provided to the BCCLA, Chief Superintendent Morrison stated that the RCMP investigation found no basis in any of the allegations made by the BCCLA. He went on to say that Sergeant Lemaitre (the RCMP media relations officer) was provided operational guidance by him (Chief Superintendent Morrison) with respect to keeping notes.
The BCCLA subsequently requested that I conduct a review of the adequacy of the RCMP public complaint investigation. Since that review is inextricably linked to this investigation, I have provided my review of the RCMP Part VII investigation in this report. The review can be located at Appendix C to this report.
During a press conference on December 12, 2008,Footnote 85 Superintendent Rideout advised that he recognized that some information as provided to the public in the early stages of the investigation was incorrect and inconsistent with information obtained through the investigation. He then went on to say that although the RCMP knew of the errors, they were not corrected because of the ongoing investigation and because of other factors, such as awaiting the decision by BC Justice as to whether criminal charges would be brought against the RCMP members involved.
In evidence provided to the Braidwood Inquiry on May 6, 2009, Superintendent Rideout stated further that the release of certain information pertaining to particular aspects of the investigation was, in his view, overly specific and a potential threat to the integrity of the investigation of the death of Mr. Dziekanski. As a result he replaced Sergeant Lemaitre, the media relations officer who had been the RCMP media lead, with Corporal Carr, a media relations officer attached to IHIT. Superintendent Rideout stated that although he was aware of the inaccuracies, he did not correct the public record because of what he perceived as the potential impact on the fairness of any subsequent proceeding, such as a criminal trial (in the event charges were warranted), before a coroner's inquest or before a commission of inquiry such as the Braidwood Commission.
Arguably, correcting relatively straightforward inaccuracies such as the number of members present or the number of times the CEW was cycled would not have compromised the position of the RCMP vis-à-vis any criminal investigation of the events. It is incumbent on the RCMP to take all reasonable steps to confirm information prior to it being provided to the public and to correct inaccuracies when they are found, unless an overriding rationale exists as to why that information should not be made public. Failing to do so perpetuates concerns that the police are not conducting a transparent and impartial investigation into its members.
At the same news conference, Superintendent Rideout was asked whether the officers involved intended to deploy the CEW on Mr. Dziekanski whether or not he had picked up a weapon (the stapler). Superintendent Rideout responded that the IHIT investigation canvassed all aspects of the event, and concluded that the responding RCMP members deployed the CEW because of the perception that Mr. Dziekanski's behaviour was extraordinary and combative.Footnote 86
In that same exchange during the December 12, 2008 news conference, Superintendent Rideout also said:
While enroute to responding to the incident, the officers received update information about the situation through the radio. They were advised on the nature of the complaint that they were responding to. By policy, their duty necessitated them to take Mr. Dziekanski's [sic] into custody. They would be making assessment as to how they would do that while they were enroute, based on all available information to them. We know that occurred.
This statement begs the question as to whether IHIT had any knowledge of the responding members having discussed the use of the CEW prior to their arrival at YVR, or had colluded or concocted a story to the contrary. This was put directly to Superintendent Rideout during his interview with the Commission. Superintendent Rideout categorically denied that IHIT had or has any such knowledge.
This question was also posed to the RCMP by the Commission. The RCMP has advised me that it has examined the files and audio recordings related to this issue and cannot locate any indication that IHIT had any such knowledge.
The primary questions to be asked with respect to media releases are whether, over time, the media releases provided by the RCMP were fair and objective or whether they were to any degree self-serving and defensive of RCMP members and their conduct. Although I cannot state categorically that media releases were provided to protect or enhance the image of the RCMP, I have concerns that some of the information provided to the media did just that. This issue is discussed in more detail in Appendix S (Media Releases) to this report.
The issue of the impression left by RCMP media releases was also discussed in my Final Report on Chair-Initiated Complaint into the Shooting Death of Ian Bush – November 28, 2007.Footnote 87 In that decision, I recommended that [t]he RCMP develop a media and communications strategy specifically for police-involved shooting investigations that recognizes the need for regular, meaningful and timely updates to the media and to the public. In addition, the media and communications strategy should include a publicly available general investigative outline of the steps to be taken and the anticipated timeline for each step.
The RCMP should have released certain information to the media which would have served to clarify information pertaining to the death of Mr. Dziekanski and correct erroneous information previously provided without compromising the IHIT investigation.
I reiterate my recommendation in the Ian Bush decision that [t]he RCMP develop a media and communications strategy specifically for police-involved shooting investigations that recognizes the need for regular, meaningful and timely updates to the media and to the public. In addition, the media and communications strategy should include a publicly available general investigative outline of the steps to be taken and the anticipated timeline for each step. I also expand my recommendation to cover all in-custody
Cause of Death
A determination with respect to the cause of Mr. Dziekanski's death is outside the scope of this report; however, some information regarding the medical assessment is provided below.
An autopsy was performed by Dr. Charles Lee on Mr. Dziekanski on October 16, 2007. Dr. Lee stated in his autopsy report that the cause of death cannot be conclusively determined and that a pre-existing heart condition of Mr. Dziekanski combined with signs of chronic alcoholism and being pinned in the prone position as he was being subdued, may have led to a fatal arrhythmia.Footnote 88 Dr. Lee indicated as well that although Mr. Dziekanski was agitated, he likely did not suffer of delirium. The autopsy of Mr. Dziekanski found no trace of alcohol or drugs in Mr. Dziekanski's body. Dr. Lee ruled that the death of Mr. Dziekanski was best characterized as sudden death following restraint.
Subsequent to Dr. Lee's autopsy, Dr. Michael Pollanen, the Chief Forensic Pathologist for Ontario, was asked by IHIT investigators to review the autopsy findings of Dr. Lee and provide a second opinion on the findings. After reviewing the autopsy report and supporting medical documentation and evidence collected by Dr. Lee, as well as viewing video and photos, Dr. Pollanen concluded that:
- Robert Dziekanski did not die of the effects of a physical injury, the toxic effects of a drug, or an acutely fatal natural disease or condition. There are at least four variables that could be co-factors in death: an agitated state, restraint in the prone-position, the effects of a taser discharge and chronic alcoholism.
- Robert Dziekanski did not die of a taser-induced cardiac arrhythmia.
- There is competing scientific evidence on the putative adverse non-cardiac effects of a taser discharge in animals and man. If Robert Dziekanski's death was caused, in part, by the adverse effects of an agitated state, then we need to keep an open mind about the putative role that the taser discharge may have played in indirectly contributing to death, since Mr. Dziekanski appears more (dis)stressed and agitated after the deployment of the taser.
For additional information concerning the medical assessments, please see Appendix T.
Reference was made by Dr. Lee and by Dr. Pollanen to Mr. Dziekanski being placed in a prone position while being restrained and the possibility that this position, coupled with a state of high agitation, can lead to death.
I note from my review of the video of the arrest of Mr. Dziekanski, that Corporal Robinson is seen to be apparently placing weight on Mr. Dziekanski's upper body for approximately 40 seconds during the struggle, while Mr. Dziekanski was in the prone position. This is corroborated by Corporal Robinson's statement to IHIT investigators and statements of other responding RCMP members during the incident. I note that during his evidence before the Braidwood Inquiry, Corporal Robinson denied having placed an inordinate amount of his weight on Mr. Dziekanski's neck area.
While not conclusive or determinative of the cause of death, and based on the comments of the pathologists in this case, it is my belief that positional asphyxia may occur independent of other contributing factors such as delirium. As noted above, Dr. Lee indicated that he did not believe that Mr. Dziekanski suffered from delirium.
Whether Mr. Dziekanski would have survived had the struggle with the RCMP members been shorter, or had he been moved to a full recovery position immediately after his arrest, or had the handcuffs been removed sooner, cannot be known.
A 2005 decision of the British Columbia Police Complaint CommissionerFootnote 89 dealt with positional asphyxia causing death. In that decision, the Commissioner also discussed positional asphyxia vis-à-vis excited delirium and other causes of irrational behaviour. He recommended that police should receive regular and updated training on these issues and commented on issues related to officer and public safety, and the need to quickly obtain medical assistance when necessary to protect the person displaying such behaviour.
The RCMP should immediately conduct a review of its policies and training regimen to ensure that members are adequately trained with respect to recognizing the risks inherent in, and signs of, positional asphyxia and in taking steps to mitigate those risks.
Travel to Poland
Criticism has been levelled at the RCMP investigation by some because of travel to Poland by IHIT investigators,Footnote 90 citing such travel as an attempt to discredit Mr. Dziekanski and having no link to investigative necessity. During a news conference in December 2008, Superintendent Rideout provided an explanation for the travel to Poland.
His position was that such travel was necessary to seek background and potential evidence which was available in Poland. Further, Superintendent Rideout has indicated that such additional information had been requested by the medical experts who attempted to determine the cause or causes of Mr. Dziekanski's death. I note that a number of the expert reports prepared subsequent to the post mortem examination of Mr. Dziekanski indicated that background information pertaining to Mr. Dziekanski may assist in determining the cause of death.
Those medical experts, however, were focused on the cause of death, and not the nature or the manner of death. In my view, therefore, the travel goes to the nature of the investigation being conducted. If the IHIT team was conducting a Coroner's Act investigation, i.e. to determine the cause of death, the travel may have been deemed necessary, but I would expect that acquiescence from the Coroner's Service would have been sought prior to embarking. If the investigation was criminal in nature, an awareness of the events leading up to the death may assist in determining culpability but, again, I would have expected a clearer rationale for the travel.
The travel of IHIT investigators to Poland was not carried out pursuant to the Mutual Legal Assistance in Criminal Matters Act (commonly known as an MLAT request), but was arranged on an ad hoc basis as between IHIT and Polish authorities. Canada and Poland have had a bilateral assistance agreement in place since 1997.Footnote 91
During his interview with the Commission, Superintendent Rideout stated that he participated in the travel to Poland because he wanted to uncover any available information to explain why Mr. Dziekansi acted as he did at YVR. He said that the Coroner appeared not to be interested in Mr. Dziekanski's behaviours prior to his death, but he (Superintendent Rideout) felt that physical and mental health issues as they related to Mr. Dziekanski were relevant. Superintendent Rideout pointed out that he did not accede to the travel because of the profile of the investigation. He said the trip was not intended to discredit Mr. Dziekanski and that he would have conducted such a background investigation for any in-custody death file.
The reasons for undertaking such travel could include furthering a criminal investigation, providing assistance to the Coroner's Service or in support of a civil matter. The RCMP has not been clear in any official release as to the nature of the travel or its goals and objectives, thereby contributing to the perception of partiality.
Allegation 2 – Investigation of Mr. Dziekanski's Death
This part of the report is intended to address what I consider to be the secondary aspects of the IHIT investigation of the death of Mr. Dziekanski. For a more complete discussion of the issues, please see the appendices as referenced in the report.
Statements from RCMP Members
As part of their duties, police officers are required to document their involvement in events which occur as a result of their employment and to provide that documentation to their employer. Such documentation must also be disclosed by operation of law to defence counsel or as directed by the courts with respect to judicial processes. Further, in order for a police officer to bring him or herself within the confines of protection offered by section 25 and other relevant sections of the Criminal Code, he or she must provide sufficient information to demonstrate that at the relevant time he or she was a peace officer engaged in the lawful execution of his or her duty and using only as much force as was necessary for that purpose.Footnote 92
As I noted in my report on the death of Ian Bush:Footnote 93
As a general rule, persons in Canada are under no legal obligation to provide a statement to the police. The police may request that a person provide a statement to them during an investigation but, absent some statutory or common law duty to comply, they have no means to enforce the request. If the police have reasonable grounds to arrest a person and keep them in custody, the police may attempt to interrogate the person in circumstances where the person's liberty has been taken away from them, but there is still no requirement that the person cooperate with the police.
RCMP members are required to provide an "accounting" of their activities when directed to do so. This is termed a "duty to account" statement. The authority to compel RCMP members to provide a duty to account statement is derived from the fact that RCMP members are required to obey a lawful order from another RCMP member who is superior in rank or who has authority over the member. There is no similar requirement for ordinary citizens in the ordinary course of police investigations.
Given the mandatory nature of duty to account statements, they are likely not voluntary and not admissible in criminal proceedings. It is clear that the duty to account is primarily viewed as an administrative process. For example, it may be used for the purpose of code of conduct proceedings. Although the duty to account is not specifically considered part of the criminal investigation process, this type of statement can provide general information from which to commence a criminal investigation.
One statement taken from one of the responding members was considered by IHIT investigators to be a duty to account statement. This was a statement taken by Corporal D. Brassington from Constable Millington at the YVR RCMP sub-detachment office in the hours following the incident. According to the summary contained in the Report to Crown Counsel, when Corporal Brassington arrived all of the responding members (Corporal Robinson and Constables Millington, Rundel and Bentley) were together in the sub-office, along with Staff Relations Representative (SRR)Footnote 94 Corporal Ingles. Corporal Ingles indicated to Corporal Brassington that he had spoken with Constable Millington.
According to information before the Commission, many RCMP members are of the view that there exists an unwritten rule that members will provide what amounts to a duty to account statement following an incident. Such statements are at times taken following a meeting between the SRR and the member involved.
The requirements of the duty to account statement must be clear to all RCMP members. Although some divisional guidelines do contemplate the duty to account,Footnote 95 that is not currently the case within the RCMP nationally.
The role of the SRR is not to provide legal advice. Since SRRs do not provide legal counsel for RCMP members, conversations between the involved member and the SRR are not privileged in the legal sense, although within the RCMP they are considered confidential.
Absent explanations, the issue here is the perception such a meeting conveys. Why did the SRR meet with all of the members involved? Did the SRR and Constable Millington meet alone? For how long? What was discussed? What was the resulting input or influence, if any, of the SRR's involvement? Who called the SRR and why?
In terms of the meeting between Constable Millington and Corporal Ingles, I have no knowledge of the content of the conversation, other than Constable Millington's comment in his statement that Corporal Ingles told him that he had the option to sleep on it and not give a statement right away to ensure that he (Constable Millington) recalled all of the details.
Corporal Ingles has commented on the meeting.Footnote 96 It appears to me from the comments of Corporal Ingles that, in his view, the role of the SRR is to filter information as between the involved member and the investigators. With respect to the role of and interaction between an SRR and an involved member, I see this as a practice fraught with potential pitfalls. The investigators, particularly in the early stages of an investigation, require facts which are not adulterated or influenced. The investigator is at liberty to conduct the interview of the involved member without the SRR potentially having first discussed the facts of the situation with the member. SRR attendance and discussion with the member(s) involved prior to the member being asked to provide a statement with respect to serious incidents could result in filtered information being provided to the investigator. The further danger is the potential for the appearance of interference, or at worst actual interference, with an ongoing investigation.
In light of my recommendation (see page 47) that investigations of police officers involved in incidents of death or serious bodily harm be treated as criminal investigations until they are demonstrated to be otherwise, the role of the SRR should be clarified.
Notwithstanding the potential that the involved member's statement may be influenced, I am concerned that prior to taking a statement from the involved member, the investigator could be influenced by information or a version of events provided by the SRR. To paraphrase an old maxim, an impartial investigation must not only be done, it must be seen to be done. This is particularly true when the police are investigating the police.
In addition to concerns with the presence of the SRR prior to any interview being conducted or statement taken from police witnesses by the investigators, I have concerns with the fact that apparently all of the involved members were together at the sub-detachment at YVR following the death of Mr. Dziekanski to meet with the SRR. Basic investigative practice is for witnesses to be separated to avoid any opportunity for complicity or the appearance of such.
The issue of the duty to account statement has arisen previously and I have recommended the need to address the propriety of the involvement of the SRR. In my decision in the Ian Bush matter,Footnote 97 my recommendation and the response of November 2, 2007 from the Commissioner of the RCMP were as follows:
The RCMP develop a policy that dictates the requirement, timeliness and use of the duty to account that members are obliged to provide.
Commissioner Elliott responded:
I support this recommendation and will ask the Director, Community, Contract and Aboriginal Policing Services, to ensure that this is done in a timely manner.
To date, it has not been confirmed with the Commission that this recommendation has been implemented.
The responding RCMP members meeting alone at the YVR sub-detachment office following the death of Mr. Dziekanski was inappropriate.
An SRR should not have been permitted to meet alone with Constable Millington prior to the IHIT investigator.
If the protocol of SRR attendance is to continue, the RCMP should formalize the role of the SRR to provide clear policy and guidance to ensure that the SRR knows the bounds of his or her involvement and the required protocols with respect to such attendance, and that in all such cases the SRR not meet alone with a subject member in advance of being interviewed by an investigator.
I reiterate my recommendation in the Ian Bush decision (November 2007) that [t]he RCMP develop a policy that dictates the requirement, timeliness and use of the duty to account that members are obliged to provide.
IHIT Approach to Questioning Members
It is apparent to me that the IHIT investigators did not approach the interviews of the involved members or the civilians with a coordinated set of issues to be covered to ensure that the same areas were canvassed with each person. This is not to suggest that the IHIT investigators should have conducted each interview from the same set of questions, but coordination of the nature of questions to be asked of each witness would have been helpful. The resulting statements do not represent what would be considered a coordinated approach.
When IHIT was asked whether this postulation was correct, IHIT responded that:
The IHIT members who conducted statements had full, unfettered access to the entire investigational file. To varying degrees the members resourced information such as the daily log, statement transcripts, video footage, audio recordings and other material that was collected through the course of the investigation.
Verbiage such as "to varying degrees" conveys the image that investigators did not approach the interview process in a coordinated manner and each approached the conduct of interviews as he or she saw fit. My concern, therefore, is that investigators may have worked in isolation of the details obtained by others and that the coordination of information may have caused necessary questions to go unasked. For example, in their statements to IHIT the responding RCMP members were never pressed about the degree of communication among members during the Dziekanski incident, nor were they pressed about the nature of the decision to deploy the CEW, the speed with which it was deployed or other means available to de-escalate or resolve the situation.
Although the RCMP subscribes to major case management practices, a reasonable amount of time is necessary to organize and put in place the tools necessary to manage the file. During the interviews conducted immediately after the incident, I understand that IHIT investigators would be attempting to obtain all of the information available without conducting significant analysis. In the days following the incident, however, investigators would have been able to conduct a cursory analysis at a minimum, to be able to determine what areas required sharper focus and the level of depth of information required.
The RCMP should review its operational policies and procedures to ensure that, particularly in serious cases in which members investigate the actions of other members, processes are available to enable investigator awareness of the nature and depth of detail required during interviews.
The responding RCMP members from whom statements were taken by IHIT investigators did not receive a police caution pursuant to the Canadian Charter of Rights and Freedoms at the time their statements were taken because investigators felt there was no evidence that a criminal offence had been committed. At the time the statements were taken, IHIT investigators knew that Constable Millington had discharged the CEW, they knew that there had been an altercation involving the members and Mr. Dziekanski and they knew that Mr. Dziekanski was deceased. They did not, however, have evidence that any of the responding members had committed a criminal offence.
According to the RCMP Learning Module on Witness Statements, the threshold for taking a cautioned statement is a (reasonable) suspicion that a criminal offence may have been committed.Footnote 98 IHIT investigators did not have such a belief when they took the statements from the responding members. Investigators indicated in the IHIT Report to Crown Counsel that they were prepared to stop any given interview and issue the necessary caution had any evidence of a criminal offence come to light.
The Report to Crown Counsel as compiled by the IHIT investigation stated:
Investigators made a conscious decision to take un- warned statement [sic] versus warned statements. Based upon the totality of the evidence available to investigators at the time, no evidence existed indicating criminal behaviour on the part of the officers. Investigators were prepared to stop interviews and warn the officers at any time should their information suggest criminal code breaches.
With respect to the first statements taken by IHIT investigators from the responding members shortly after the death of Mr. Dziekanski, I do not disagree with the decision to take non-cautioned witness statements.
Beginning at 7:23 a.m. on October 14, 2007, an IHIT briefing took place at the Richmond Detachment and by that time, a number of IHIT investigators had viewed the Pritchard video. After viewing the Pritchard video and realizing that the statements of the responding members did not align with the video evidence, it would have been prudent for IHIT investigators to have asked themselves whether the video presented a reasonable suspicion that a criminal offence had taken place before taking subsequent statements from the responding members.Footnote 99 This would have caused them to reconsider and document whether to take cautioned statements from the responding members and whether or not to show the Pritchard video to the involved members prior to taking further statements.
Evidence during the Braidwood Inquiry supports the assumption that Superintendent Rideout, the Officer in Charge of IHIT, did consider this action and decided against it. In an e-mail dated November 5, 2007 from Superintendent Rideout to his superior, Chief Superintendent Dale McGowan, Superintendent Rideout stated:
...we will not be releasing the video to the involved member. We feel it would be inappropriate in an impartial investigation.
Superintendent Rideout explained in his Braidwood Inquiry testimony that although he wrote member, he actually meant that the video would not be released to the four responding members.
The video, vis-à-vis the involved members, appears not to have been considered by IHIT investigators in the context of an investigative tool. In his evidence during the Braidwood Inquiry, Superintendent Rideout indicated that he had considered the effect on the involved members of the video being publicly released, but he did not comment on the reason for not reviewing the video with the involved members. He said:
... the thinking was that the release of that video and their viewing of it would be traumatic for them, ... and there was some concern should that be released, my position was that was not the role of the IHIT investigation and that we should not participate in that.
Superintendent Rideout reiterated those comments during his interview by the Commission when he was asked why the Pritchard video was not put to the responding members to allow them to comment on the differences between their versions of events and the scenes depicted in the video. Notably, during his testimony at the Braidwood Inquiry on September 22, 2009, Superintendent Rideout was asked about an e-mail which on October 23, 2007 he sent to Inspector Bill Fordy (a member of IHIT) in which he referred to the fact that the Regional Coroner had concerns regarding discrepancies between the members statemnets [sic] and the seized video at YVR. In that same e-mail Superintendent Rideout says, Perhaps you could review the statements. We will likely have to re-interview members to address his questions. Superintendent Rideout testified during the Braidwood Inquiry that he intended this message as a "head's up" or a notification to Inspector Fordy. Despite this comment, these discrepancies were not addressed with the members involved in this incident. I am left to surmise, therefore, that the use of the video as an investigative tool was not considered by IHIT.
If for no other reason than to be fair to the responding members and give them an opportunity to address the significant and readily apparent discrepancies between their versions of events and the video, it would have been appropriate to provide the responding members with an opportunity to view the Pritchard video prior to taking further statements from them.
Notes of Responding Members
I have reviewed the notes taken by each of the responding members with respect to the interaction with and death of Mr. Dziekanski. The quality, completeness and content of these notes is well below the standard expected of police officers. Three of the four responding members deal with the entire incident in approximately four pages of their relatively small (pocket sized) police notebooks. The fourth member recorded the entire incident in approximately two pages. Each of these records also includes the names and contact information of potential witnesses, meaning that the substantive description with respect to the interaction with Mr. Dziekanski is even more truncated than the number of pages indicated.
The result is that detail with respect to the observations of the members, their perceptions of the scene and Mr. Dziekanski's actions as well as their own responses and the rationale for those actions is sparse. At best, the notes provide a very high level overview of the incident. I note that during his testimony in the Braidwood Inquiry, Staff Sergeant Douglas WrightFootnote 100 indicated that he urged Corporal Benjamin Robinson to take "excellent notes" about the incident, but that ultimately those notes were not to his standard. Notably, Staff Sergeant Wright acknowledged that it is often the case that due to the fact that a member's notes may be subject to "examination and/or production and/or a search warrant to address what it is that he did at the time," a member will put "very, very short, cryptic notes" and that the documentation on the file itself would be where additional information would be held.
RCMP policy advises members that:
2. 1. The member's notebook is a fundamental investigative tool. It is essential that notebooks be properly compiled, complete and accurate in order to support investigations, corroborate evidence and increase the credibility of a member's testimony in court. Properly recorded entries (notes) may also prove to be invaluable in substantiating information years after an investigation.
2. 2. You may use notebook entries to refresh your memory for court if the notes were made at or near the time of the occurrence.Footnote 101
Some or all of the responding members may take the view that because they were going to be asked to provide verbal statements concerning the YVR incident, the need for detailed written notes was lessened. I do not accept this position. No matter the occurrence, RCMP members are aware that they will be required to document the matter with internal written reports. The requirement to document police actions does not replace or diminish the need to document the matter in their own notebooks. As noted elsewhere in this report in the section titled Statements from RCMP Members, in order for a member to invoke the protections of section 25 and other relevant sections of the Criminal Code, he or she must provide sufficient information to demonstrate that at the relevant time he or she was a peace officer engaged in the lawful execution of his or her duty and using only as much force as was necessary for that purpose.Footnote 102
The issue of sub-standard note taking has arisen in previous Commission decisions.Footnote 103 To date, the Commission has seen no discernable improvement in note taking.
To be clear, I make a distinction between note taking in the field and the completion of the various reporting forms to be completed by RCMP members (such as Occurrence Reports, Continuation Reports, CEW Usage Report or the Subject Behaviour/Officer Response Report [which will apparently be implemented in 2010]). Although RCMP policy requires in some circumstances that computer-based reporting be completed prior to the end of shift, absent adequate field note taking, the reliability of the data used for inclusion in the mandatory reporting documents must be considered suspect. Furthermore, the Commission has reviewed many cases in which the electronic reporting forms are not completed in a timely manner. In such cases, absent comprehensive, contemporaneous notes, the reliability of the written record will be seriously diminished.
I see as problematic the potential that in some cases members opt to rely on memory to provide reporting, as opposed to ensuring that appropriate and comprehensive field notes are taken in the first instance.
The responding members did not keep adequate notes of the incident involving Mr. Dziekanski.
In light of the continuing nature of this issue, the RCMP should take steps to ensure that members are aware of the importance of note taking, and that supervisors should be encouraged to regularly review the notes taken by their subordinates to ensure the quality of such documentation.
Critical Incident Stress Debriefing
In addition to the meeting with the SRR, a critical incident stress debriefing took place on October 27, 2007. Present were the four members as well as others trained in helping people deal with the aftermath of a traumatic event. Other than Constable Bentley, who gave his final statement on November 22, 2007, the other members had all provided statements prior to this debriefing taking place. I have reviewed Constable Bentley's post debriefing statement and note that it does not differ in substance from the accounts provided by the other members, nor does it differ from his own previous statements.
I understand the need to provide such debriefing sessions to assist those involved in dealing with traumatic events. As such, for the health and well-being of those involved these sessions are necessary, provided they do not in any way interfere with the need to segregate evidence or contribute to the tainting of future evidence.
Independent Observer Comments
As noted in the section of this report discussing the Independent Observer Program, the Independent Observer found that no IHIT investigators had any association with any of the responding members.
He noted that the girlfriend of an IHIT investigator was acquainted with the girlfriend of Constable Millington. As a result, the IHIT team commander unilaterally assigned the investigator to the role of file coordinator, with the result that the investigator did not participate in conducting the investigation itself. This action was taken with no prompting from the Independent Observer.
Further, the Independent Observer reported that the IHIT team commander was accredited (in Major Case Management) and that each of the investigators was assigned full-time to the IHIT team, meaning that each worked solely on the investigation of homicide cases. The IHIT members, therefore, are highly trained and possess the skill sets necessary to conduct serious investigations.
The incident involving Mr. Dziekanski occurred at approximately 1:30 a.m. on Sunday, October 14, 2007. IHIT was advised of the death of Mr. Dziekanski at 2:28 a.m. and arrived at YVR to begin the investigation at 3:45 a.m.
The Independent Observer noted no signs of bias or partiality on the part of the IHIT investigators. On October 29, 2007, the Independent Observer received a CD containing witness statements taken to that date. Upon review of those statements, he noted no concerns with respect to impartiality or the asking of leading questions.
Having had the opportunity to review the IHIT investigation file, I agree with the assessment of the Independent Observer. I also note the following:
- IHIT responded with an appropriate number of members to conduct the investigation;
- RCMP Forensic Identification Technicians were called to the scene after the death of Mr. Dziekanski. These technicians processed the scene for evidence and chronicled the incident appropriately with photographs;
- IHIT investigators began to take statements from the responding members and some of the civilians very shortly after arriving at the incident.
I have no evidence to suggest that IHIT investigators were less than professional. No evidence suggests that the responding RCMP members involved in the incident were treated inappropriately.
Major Case Certification
When investigating incidents are deemed to be serious in nature, such as homicides, most Canadian police agencies subscribe to a series of investigative protocols and processes known as Major Case Management.
At the time of the investigation of the death of Mr. Dziekanski, Superintendent Wayne Rideout, a member of the RCMP and the OIC of IHIT, was certified as a Team Commander in Major Case Management. Staff Sergeant David Attew, the initial commander of the IHIT team conducting the investigation was also Major Case certified. According to Superintendent Rideout, a number of the IHIT investigators on the team had taken the Major Case Investigators Course, while others, although experienced investigators, were newer on the IHIT team. In total, nine IHIT members were present at the YVR scene.
I note that Superintendent Rideout, although he was the OIC of IHIT and therefore had overall responsibility for the IHIT investigation teams, was not the original commander of the IHIT team assigned to investigate Mr. Dziekanski's death. Approximately one month into the investigation, however, he assumed those duties, presumably because of the public interest generated into the death.
On November 19, 2007 Chief Superintendent Richard Bent, Deputy Criminal Operations Officer of RCMP "E" Division requested that the Ontario Provincial Police (OPP) conduct a file review of the IHIT investigation. Specifically, Chief Superintendent Bent requested that the OPP examine the IHIT investigation to ensure that it was thorough, professional and unbiased. The OPP review found that overall the IHIT investigation was conducted in an impartial and unbiased manner and that the management of the investigation was conducted according to established standards. I have not relied on the OPP report in my investigation.
No bias or partiality toward the involved RCMP members was present in the IHIT investigation of the death of Mr. Dziekanski.
Comment on Body-Worn Video Devices (Head Cams)
Finally, I wish to address an issue, the importance of which is exemplified by the varying witness accounts of this incident. Undoubtedly, public interest in the events leading up to Mr. Dziekanski's death was increased because of the video footage showing the events unfold in real time. The proliferation of digital technology will afford members of the public an ever-increasing ability to capture all manner of events as they unfold. In my review I have relied heavily upon the images recorded by Mr. Pritchard, as the best evidence of the critical period of time, to assess both the interaction between the police and Mr. Dziekanski as well as the accuracy of the recollections of the various witnesses who later provided their accounts of the incident.
Policing agencies throughout the world are experimenting with video technology to assist them in their policing activities. In July and August of this year the Victoria Police Department conducted a pilot project using body-worn video devices (head cams) to record police interactions with the public. Anecdotal accounts of this project speak to its success. In the United Kingdom a trial project using these devices was commenced in 2006. The number of agencies in the United Kingdom integrating this technology continues to grow.
In the circumstances of this case, there would have been a clear benefit to video footage capturing the events from the members' perspectives. Although the Commission had the benefit of a non-police generated video, there is no doubt that a system that would allow all "to see and hear the event unfold through the eyes and ears of the officer at the scene,"Footnote 104 would be the best of all possible options. In addition to providing the best evidence, from an examination of early United Kingdom experiences, it may have a crime reduction effect, improve arrest and conviction rates, reduce overall police workload and be a useful tool to provide members with feedback as to their interaction with the public thereby improving the civility of the police.
While these benefits must be balanced against privacy rights, costs and increased infrastructure demands, I believe that the time has arrived to give these devices additional consideration within the Canadian policing context.
Having considered the complaint, I hereby submit my Public Interest Investigation Report in accordance with subsection 45.43(3) of the RCMP Act.
Paul E. Kennedy
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