Report Following a Public Interest Investigation into a Chair-Initiated Complaint Respecting the Death in RCMP Custody of Mr. Robert Dziekanski
Appendix B – Background Information
The Commission for Public Complaints Against the RCMP is an agency of the federal government and is distinct and independent from the RCMP. When investigating any complaint filed with it, and notwithstanding the fact that the complaint in this matter was initiated by me as the Chair, the Commission is not an advocate for the complainant, the RCMP or its members. As Chair, my role is to reach conclusions after an objective examination of the evidence available. When appropriate, I make findings and/or recommendations as to steps the RCMP may take to improve or correct conduct by RCMP members.
It must be further emphasized that the Commission's mandate does not extend to making findings of criminal or civil liability, but rather is founded in assessing the appropriateness of the conduct of the RCMP members as well as that of the RCMP itself and the procedures in place at the time. Pursuant to the RCMP Act, my recommendations are not binding on the RCMP.
The complaint I filed involves an examination of the conduct of the responding RCMP members, but it also involves an examination of the investigation conducted by the RCMP of the death of Mr. Dziekanski. Increasingly in our society, criticism is levelled against the optics of investigations of police conducted by police. Among my tasks as Chair is to ensure that investigations in which RCMP members investigate other RCMP members are conducted with impartiality and that the investigations are thorough.
On December 11, 2007 the Commission released an interim report listing ten recommendations associated to three broad areas of conclusion (indicated below), and in June 2008 the Commission released a final report, entitled RCMP Use of the Conducted Energy Weapon, concerning the use of CEWs by members of the RCMP.
The three broad areas of conclusion noted in the June 2008 report were that the RCMP should:
- 1) Coordinate and strengthen its efforts related to data collection and analysis of CEW use;
- 2) Empirically justify policy shifts with respect to CEW use, especially when that shift loosens the restrictions of deployment; and
- 3) Clarify to its members and to the public when it is permissible to deploy the weapon.
In a letter to me as Chair of the Commission, dated November 29, 2007, RCMP Commissioner William J.S. Elliott indicated that the RCMP had taken additional steps to study the RCMP's use of the CEW, including:
- Conducting a preliminary review of the RCMP's national policies and protocols as well as supplementary policy guidelines for RCMP detachments having airports within their jurisdiction, and taking steps to amend those policies to "reflect the requirement to have appropriate medical assistance on hand, whenever possible, when responding to reports of violent individuals and there is a heightened potential for the deployment of a conducted energy weapon."
- Appointing a senior RCMP Officer to review RCMP policy and training with respect to CEWs.
On January 27, 2009 the RCMP issued an amended Operational Manual policy on the use of CEWs. The key points noted in the amended policy are that:
- 1) The RCMP now recognizes that a risk of death is associated with the deployment of the CEW;
- 2) The CEW may now be used only 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;
- 3) RCMP members must now be re-certified annually in the use of the CEW;105 and
- 4) The term excited delirium was removed from all RCMP policy and was replaced with the phrase agitated or delirious persons.
In addition, subsequent to the death of Mr. Dziekanski the RCMP opted to:
- Restrict the use of the weapons to situations involving threats to officer or public safety;
- Test a sample of CEWs to ensure adequate operation (following a Canadian Broadcast Corporation report calling into question the reliability of the output of some CEWs). On June 1, 2009, the RCMP removed from service approximately 1,600 Model M26 CEWs (the older model used by the RCMP) following testing by the Government of British Columbia which indicated 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.106 The RCMP will test these units and replace defective CEWs with the newer Model X26;
- Enhance use of force reporting mechanisms; and
- Conduct ongoing analysis of reporting on CEW usage.107
Other Interests
BCCLA Complaint
The British Columbia Civil Liberties Association (BCCLA) filed a complaint with the Commission on November 13, 2007108 concerning what it perceived as misrepresentations made by RCMP media relations representatives and the failure of the RCMP to return video recordings taken by Mr. Pritchard in a timely manner.109
The complaint was investigated by the RCMP, which concluded in a final report dated December 23, 2008 that none of the allegations advanced by the BCCLA could be supported. One RCMP media relations officer did, however, receive operational guidance as a result of his failure to keep adequate notes.
On March 19, 2009, the BCCLA wrote to me to register its discontent with the response received from the RCMP following the RCMP's investigation of the BCCLA complaint relating to media relations. The BCCLA requested that its complaint be reviewed by the Commission. The relevant documents are located at Appendix C and Appendix D, respectively.
Details provided by the RCMP to the media concerning events surrounding the death of Mr. Dziekanski are inextricably linked to the BCCLA request for a Commission review of its complaint. Accordingly, my review of the BCCLA complaint pertaining to media relations is set out in detail below in the section of this report titled Appendix S – Media Releases.
Thomas R. Braidwood, Q.C., Hearing and Study Commission
The Province of British Columbia has initiated a Commission of Inquiry having two phases, each headed by Commissioner Thomas R. Braidwood, Q.C., and known as the Braidwood Commission (more formally, the Thomas R. Braidwood, Q.C., Hearing and Study Commission). The first phase was empowered to examine the appropriateness of the use of CEWs in the Province of British Columbia and to report on and make recommendations with respect to training in the use of the weapons. The first phase of the Braidwood Commission was not intended to have direct applicability to the RCMP.
The second phase, which began to hear witnesses on January 19, 2009, was empowered to examine the events and circumstances of the death of Mr. Dziekanski at YVR and to issue a report.
The full terms of reference of the Commissions are found at Appendix E to this report.
BC Criminal Justice Branch
In addition, following the IHIT investigation and the submission of a Report to Crown Counsel, the actions of the responding RCMP members were examined by the British Columbia Criminal Justice Branch (BC Justice) with a view to determining whether criminal charges were warranted. According to the statement issued by BC Justice, the charges contemplated were:
- Assault;
- Assault with a Weapon; and
- Manslaughter.
BC Justice was of the view that the actions of the responding RCMP members contributed to the death of Mr. Dziekanski. Criminal Code authorities110 which permit a peace officer to use reasonable force in the proper execution of his or her duties, were then analyzed in conjunction with decided cases which stipulate that a peace officer is not expected to measure the use of force with exactitude, particularly in circumstances which may result in serious injury to police officers or members of the public.
Based on the evidence available to BC Justice at that time, no criminal charges were approved against any of the responding RCMP members. The decision of BC Justice was that:111
There is a substantial body of independent evidence which supports that the Officers in question were lawfully engaged in their duties when they encountered Mr. Dziekanski, and the force they used to subdue and restrain him was reasonable and necessary in all the circumstances.
In light of this independent evidence, there is not a substantial likelihood of conviction in this case for any of the offences considered, in fact, the available evidence falls markedly short of this standard.
Accordingly, the Criminal Justice Branch will not be approving any charges in relation to this very tragic event.
The mandate of the Commission for Public Complaints Against the RCMP does not extend to a review of the decision by BC Justice (at Appendix W). The BC Justice release concerning the decision stated that the examination of the legal issues involved was carried out in a neutral and unbiased manner and according to objective standards.
Observer Pilot Project
In March 2007 a project known as the Independent Observer Pilot Project was undertaken between the Commission and the RCMP in British Columbia ("E" Division, as it is known in the RCMP). The Program was formalized as the Independent Observer Program in September 2008.
Through the Program, 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. The project is operated in conjunction with the RCMP's Office of Investigative Standards and Practices (OISP) in British Columbia. The intent of the project is to address the public's concerns with respect to the level of objectivity and impartiality of RCMP investigations involving the conduct of RCMP members.
On October 15, 2007, the day following the death of Mr. Dziekanski at YVR, the Commission was notified by the RCMP that the incident had occurred. The Commission assigned an Independent Observer to meet with Integrated Homicide Investigation Team (IHIT) investigators and observe the investigative process to assess its impartiality. Specifically, the Independent Observer was assigned to:
- Make an initial assessment as to the impartiality of the RCMP IHIT assigned to investigate this incident.
- Monitor progress so as to ensure that any future issues as they relate to the impartiality of the investigation are identified and addressed.
The Independent Observer completed an assessment as to the impartiality of the IHIT investigative team and identified no issues with respect to the impartiality of the investigation.
A complete description of the Independent Observer Program may be found at Appendix F.
105 OM 17.7.1.4 - Revised 09-01-27.
106 RCMP website – RCMP to test M26 Model Conducted Energy Weapons.
107 BC – YVR News Conference Statements – A/Commissioner A. MacIntyre, 2008-12-12. See also Commissioner's statement before Standing Committee on Public Safety and National Security – Feb 12, 2009.
108 This complaint is to be distinguished from the BCCLA complaint lodged on October 24, 2007 against the members who sought to detain Mr. Dziekanski at YVR.
109 BCCLA letter of complaint dated November 13, 2007.
110 Sections 25 and 26 of the Criminal Code.
111 See Appendix W – BC Justice Statement, or CRIMINAL JUSTICE BRANCH CLEAR STATEMENT. [PDF Format, 43.1KB]