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Report Following a Public Interest Investigation into a Chair-Initiated Complaint Respecting the Death in RCMP Custody of Mr. Robert Dziekanski

Appendix K – The Nature of the CEW and the Evolution of CEW Policy

The CEW was first approved for RCMP use in 2001. It is a prohibited firearm pursuant to the Criminal Code 119 as indicated in the RCMP Operational Manual,120 which advises members of that fact. A report completed for the RCMP by an external consultant has identified an issue with respect to the designation of the weapon as approved for use by the RCMP, in that the regulatory amendments necessary to possess the weapons have not been enacted. It is to be borne in mind that notwithstanding the RCMP Operational Manual categorization of the CEW as an intervention option to control individuals and avert injury to members and the public,121 and the IM/IM categorization of the CEW as an intermediate device, the CEW is, as noted, a prohibited firearm and must be treated as such.

The CEW may be deployed in two modes; probe mode and push stun mode. In probe mode, the function of the CEW is to incapacitate the neuromuscular system of the recipient of the discharge. Compliance may be achieved in a clinical sense by incapacitating muscle groups but the reality, although collateral to the means of incapacitation, is the infliction of severe pain on the recipient.

In push stun mode, i.e. with the electrodes of the CEW being placed directly against the subject, the RCMP Operational policy in force at the time of the YVR incident stipulated that in this mode, the CEW is primarily a pain compliance device. This stipulation has been removed from the most recent iteration of CEW policy.122 I noted in my March 2009 report that statistics now indicate a reduction of approximately 30% in CEW usage in push stun mode.123

Following the RCMP providing the Commission with data concerning CEW deployments during the period October 1, 2007 to December 31, 2007, I expressed my concern to RCMP Commissioner Elliott with respect to the characterization of injuries sustained by recipients of CEW deployments. Specifically, I expressed concern that characterization of injuries ranging from "no injury" to "death proximal to CEW usage" do not appropriately capture the degree of harm the CEW is capable of causing. In the category "no injury", the RCMP includes the immediate effect of CEW usage (slight burns/probe marks). By repeatedly categorizing minor primary injuries as "no injury" the RCMP is, in effect, minimizing the consequences of the CEW and potentially desensitizing RCMP members and the public to the effects of the CEW.

It is of interest to note that in a news interview, Mr. Ujjal Dosanjh, Attorney General of British Columbia at the time when CEWs were first introduced into the province by the RCMP in 2001, indicated that he was advised that the CEW was intended to be used only in situations in which it could be used as an alternative to lethal force.124

The concept of less lethal force was reviewed by the RCMP in a 2000 position paper, and a CEW Evaluation Project was conducted by the RCMP. It was recommended that:125

  1. The M26 Advanced TASER® be adopted as a less lethal response option by the RCMP.
  2. Those operational units which already have the M26 Advanced TASER® and trained operators be authorized to continue operational deployment until such time as a final decision has been made.
  3. A three-year plan be adopted to assure a timely "roll out" of this less lethal technology to front lines of service delivery.
  4. An individual be identified and tasked with the responsibility of implementing this process.

The CEW was marketed as a viable less lethal force option. In a 2007 internal report,126 the RCMP expanded on the criteria for assessing less lethal devices, as outlined in the 1998 report titled Less Lethal Force Technology. These criteria were:

  1. temporary effect;
  2. minimal medical implications;
  3. high probability of instantaneous control;
  4. effective on the highly motivated;
  5. observable effects;
  6. ideally only affect the intended.

As noted previously, the CEWs used by the RCMP are manufactured by TASER International. In its training sessions,127 TASER International teaches that the CEW in probe mode incapacitates the central nervous system which in turn incapacitates muscle groups to achieve its goal of incapacitating the subject. The manufacturer indicates that the CEW in probe mode does not rely on pain to achieve compliance. It overwhelms the central nervous system and achieves incapacitation.

TASER International training indicates that although voltage is high (50,000 volts) the amperage of the unit is lower than that of a heart defibrillator and is therefore safe. TASER International also indicates that officer safety is a prime factor in deploying the CEW and cites various examples of jurisdictions where injuries to officers declined significantly after the CEW was implemented.

In order to assess the actions of the RCMP members involved, it is instructive to canvass the evolution of CEW policy within the RCMP. The following is a non-exhaustive listing of policy amendments as they relate to the CEW; included are those amendments I believe are relevant to the discussion at hand. Other amendments, such as the type of approved holster, have not been highlighted here.

Initially, policy on the CEW was part of RCMP Operational Manual Chapter III.2 (Arrest); however, in 2005 the CEW policy was moved to Chapter 17.7, which became a separate chapter dealing with the CEW.

2001

In 2001, RCMP policy128 with respect to the CEW was that the CEW was viewed as:

... a less lethal means for controlling suspects and averting injury to members, suspects and the public.

Members were required to record details of CEW usage in their police notebooks, and were required to report usage to their supervisors, but were not required to record or report CEW usage further.129 The Senior Armourer was responsible to maintain a Quality Assurance program for the testing and evaluation of CEWs.130

2002

A number of policy revisions were issued in 2002. The first stipulated the types of batteries authorized to be used in the CEW.131 An amendment issued in May 2002 clarified that the CEW was not to be used for crowd dispersal.132 An amendment issued in June 2002 required members to also complete and submit a reporting form to Headquarters, Ottawa each time a CEW was used on a suspect.133

A September 2002 amendment indicated inter alia that:134

  1. Members must qualify annually to operate the CEW; and
  2. The CEW may only be used to subdue individual suspects who resist arrest, are combative or suicidal.

Finally, an amendment issued in October altered the location of reporting CEW usage form to Headquarters, Ottawa.135 The requirement for annual CEW recertification was subsequently changed to three years, but annual recertification has now been reinstated-please see below.

2004

One amendment was issued in 2004 which effectively rewrote policy on the CEW and significantly enhanced the content of the Operational Manual with respect to the CEW. Highlights are provided here:

  1. Only the Taser® M26, described as an intervention device to control individuals and avert injury to members and the public, is approved for RCMP use;
    1. Use of the term "less lethal" was removed from the description of the CEW as was the term "suspects". Suspects was replaced by the term "individuals";136
  2. Members were required to re-qualify for CEW use every three years (instead of annually as required in September 2002);137
  3. Definitions of Stun Mode, Probe Mode, Use of the CEW, and Operational Cartridge were added;138
  4. Use of the CEW must be in accordance with the principles of the IM/IM;139
  5. The requirements for medical intervention post-CEW became more stringent;140
  6. Reporting requirements were altered such that reporting to Headquarters (including whether the CEW was used in stun or probe mode) was required only when:
    1. Medical issues were involved,
    2. A civil claim was anticipated,
    3. Drug or alcohol abuse is anticipated or "difficulties" encountered (difficulties were not defined),
    4. Circumstances were such that the event should be reported,141
  7. The unit commander became responsible to ensure that all members under his or her command were aware of the policy directive concerning the CEW.142

2005

In June 2005 the RCMP Operational policy on the CEW moved from Operational Manual III.2 (Arrest) to Chapter 17.7 (Conducted Energy Weapon).

Added to the definition of Use of CEW were the words:

... when the presence of the CEW assists in taking control of a situation whether the CEW Challenge is given or not.143

The requirement issued in the June 23, 2004 amendment that the Headquarters reporting form was required only in certain circumstances was repealed and replaced with a requirement that a report was to be provided within 15 days to Headquarters every time the CEW was used.144

An amendment in September 2005 (preceded by an operational bulletin issued in July 2005) recognized for the first time the potential for danger to the subject if the CEW is cycled multiple times or for periods exceeding 15-20 seconds.145 The caveat with respect to the danger of multiple cycling has been retained in policy since that time. This point was confirmed by comments of Commissioner Elliott before the Standing Committee on Public Safety and National Security on February 12, 2009.

This amendment included a requirement for a battery cool-down period of ten minutes if the CEW was cycled more than ten times consecutively.146

Bulletin OM-465 (Operational Manual), issued in July 2005, referred to a report issued by the Victoria (BC) Police Service and indicated that continuous cycling of the CEW for more than 15-20 seconds may increase the risk to the subject and should be avoided where practical.147 This caveat was included in subsequent versions of CEW policy.148

In August 2005, a technical report on CEWs (or Conducted Energy Devices – CEDs as they are also known) was issued by the Canadian Police Research Centre (CPRC), in Ottawa, Ontario. The CPRC report indicated that the work was conducted in close collaboration with a Victoria (BC) Police Service study.

The CPRC's review of CEWs focused on three areas: the medical safety of CEWs, the policy considerations for police CEW operations and the analysis of the medical condition known as excited delirium. As noted, the term "excited delirium" has now been expunged from RCMP policy.

The RCMP no longer uses CPRC to conduct assessments of CEWs. As of November 2008, MPB Technologies Inc. became the approved testing facility for RCMP CEWs.149 Accordingly, I have not relied at all on any CPRC documentation in my investigation.

An amendment issued in September 2005 altered the wording of the policy on considering other possible intervention options by adding the words to control a subject.150

2007

The CEW policy in effect at the time of the death of Mr. Dziekanski (October 2007) was issued in August 2007. This policy required members to take control of the subject as soon as possible during a CEW probe-mode deployment.151 The version added the concept of excited delirium152 (which was removed from RCMP documentation as of January 2009) and informed members that:

If you suspect that an individual is experiencing an excited delirium medical emergency, when possible create a response strategy before deploying the CEW and include Emergency Medical Services (EMS) attendance in your strategy.153

Excited delirium was explained as a medical emergency which may be brought on by stimulant use, psychiatric illness or a combination of both.154 It then went on to list symptoms or behaviour typical of excited delirium, which in my view could also include behaviour demonstrated by a person in a state of high agitation. These included:155

  1. Removal of clothing,
  2. Bizarre and violent behaviour,
  3. Running in heavy street traffic,
  4. Hyperactivity,
  5. Aggression,
  6. Smashing objects, particularly windows and glass,
  7. Non-responsive to police presence or verbal intervention,
  8. Extreme paranoia,
  9. Incoherent shouting,
  10. Flight behaviour,
  11. Lid lift (eyes open so wide the whites are completely visible),
  12. Impervious to pain,
  13. Ability to resist numerous police officers over an extended period,
  14. Overheating, or
  15. Profuse sweating or no sweating at all.

The policy advises members that a person experiencing a state of excited delirium requires medical treatment following restraint, and suggests that use of the CEW in probe mode may be the most effective response to establish control.156 The policy also indicated that with respect to excited delirium:

  1. Enough members should be on hand for quick and effective control of the individual to minimize the incidence of physical confrontation,
  2. One member should be on the CEW,
  3. Effectively control the arms and legs during CEW deployment cycles,
  4. Apply approved restraints,
  5. Remove the subject from the prone position as soon as it may safely be accomplished after control is established,
  6. In the event the subject suddenly becomes quiet and stops resisting, summon EMS and prepare to administer CPR, and
  7. Subjects experiencing excited delirium should be transported to Health Services by EMS when possible.157

I have chosen to equate this state with that of a person who is highly agitated because I believe that the same criteria and response should be provided no matter the underlying cause of the behaviour.

The policy confirmed that a member certified in first aid may remove the probes from an individual after deployment of the CEW.158

The requirement to report is modified in that the reporting form must be completed before the end of a shift every time the CEW is used159 (this includes withdrawing the unit from its holster as a means to gain control, not necessarily deploying it).160

2009

The current CEW policy as captured by the RCMP Operational Manual was amended in January 2009.161 The policy now requires that RCMP members qualified on the CEW must re-certify annually (which, as noted above, was the policy in 2002). Previous policy (2004 to 2009) required a three-year recertification.

The policy as amended takes into consideration the risks inherent in using the CEW and stresses that deploying the CEW is only an option in response to a threat to officer or public safety as determined by the Member's assessment of the totality of the circumstances being encountered.162 The Manual goes on to note that the member's response must be reasonable and the force used must be necessary in the circumstances.

The policy restraints under which use of the CEW was authorized were relaxed over time. Initially, the CEW was to be used to subdue suspects who resist arrest, are combative or suicidal.163

Wording varied slightly, but from 2001 until 2007, RCMP policy stipulated that before resorting to the CEW, members were to consider other possible intervention options to control a subject.164 The version of the RCMP's CEW policy issued in August 2007165 (the version in effect at the time of the Dziekanski incident) removed that requirement.

In past reviews, I have expressed concern about the positioning of the CEW within the IM/IM. Most recently, in my report to the Minister of Public Safety, I called for a restriction on the use of the CEW to respond to subject behaviour that is characterized at the combative stage or higher. The Commission has undertaken a broader review of the adequacy of RCMP CEW policies in the form of a public interest investigation into in-custody deaths proximal to CEW use.166

As noted above, in January 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. 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 is 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.

General CEW Policy

The content of the police warning to be issued prior to the deployment of the CEW has been changed over the intervening time. Initially, the warning to be delivered was:

Stand still or you will be hit with 50,000 volts of electricity!167

The warning was altered in the 2004 amendment to:

Stop or you will be hit with 50,000 volts of electricity!168

Subsequent to the incident involving Mr. Dziekanski, the RCMP issued Bulletin OM-478 on January 7, 2008. The Bulletin stipulates that members may use the CEW, whether in probe or push-stun mode, on persons who are displaying Active Resistant Behaviour and higher categories of behaviour.169 The Bulletin differentiates between active resistant behaviour and passive resistant behaviour. Active resistant behaviour includes behaviour during which a person is physically resisting attempts at control by the police officer. Passive resistant behaviour is behaviour in which a person resists control through passive physical actions or verbal refusal in response to lawful commands.

The Bulletin created two subdivisions in the IM/IM category of Resistant Behaviour. Prior to the issuance of Bulletin OM-478, the behavioural category was indicated solely as Resistant, and was defined as:

The person demonstrates resistance to control by the police officer through behaviours such as pulling away, pushing away or running away. This can include a situation where a police officer activates a police vehicle's emergency equipment and the suspect fails to stop and attempts to evade apprehension by driving evasively.

Prior to Bulletin OM-478, the IM/IM did not recognize passive resistance as a separate level of resistance for which the use of the CEW was deemed not to be warranted.

The RCMP Operational Manual was amended on January 27, 2009170 to reflect changes to CEW policy.

On November 20, 2008, the RCMP engaged MPB Technologies Inc. to begin testing of a selection of its CEWs, particularly those manufactured prior to 2006. From across Canada, 30 CEWs were selected and tested using the 2005 TASER International protocol. Following consultation with both TASER International and the CPRC the protocol was amended to obtain a more accurate result. Test results have not yet been received.

At the time, the RCMP was aware that a study171 commissioned by the Canadian Broadcasting Corporation (CBC) was to be released. That study found variances in the voltage outputs of a number of CEWs tested.

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 [sic] 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.172 The RCMP will test these units and replace defective CEWs with the newer Model X26.

RCMP Comments on CEW Training

On May 6, 2009 Inspector Troy Lightfoot, the Officer in Charge of Use of Force and Operations Programs appeared before the Braidwood Inquiry. He indicated in his evidence that reporting requirements with respect to the CEW have been altered by the RCMP subsequent to October 2007, and stated that current policy requires that CEW usage reports be reviewed at a divisional and national level to assess whether such usage was within the scope of policy. Added to policy is the category of "acutely agitated or delirious persons" as being at higher risk of harm if exposed to a CEW deployment.

Inspector Lightfoot confirmed that CEW recertification is required annually (as noted above) and stated that ensuring continued CEW certification is a responsibility of each division. He stipulated that the RCMP has not imposed any requirement that members complete a minimum number of years of service prior to becoming CEW certified.

Inspector Lightfoot also discussed amendments to the IM/IM which were approved in May 2008. He said that the IM/IM no longer includes a category of weapons known as "Impact Weapons", and said that the language associated with some subject behaviours has been changed. By way of example, he indicated that:

  • Non-cooperative is now called passive resistant behaviour.
  • Resistant behaviour is now called active resistant behaviour.
  • Combative behaviour is now called assaultive behaviour.
  • Death or grievous bodily harm is now called grievous bodily harm or death.

He said that, in addition, a ring has been added to the IM/IM. The intent of this ring is to represent a filter between behaviour and potential intervention responses. The term communication has replaced the former verbal intervention.

Inspector Lightfoot indicated that amendments to RCMP policy subsequent to the death of Mr. Dziekanski stipulate that the CEW may only be deployed in circumstances involving a risk to officer or public safety.

I note that the language used in the amended RCMP policy does not line up with the categories of behaviour currently described in the IM/IM. It is not known how the members will be expected to reconcile the two.

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119 See Fact Sheets concerning the Firearms Act.

120 OM 17.7.7.1.1. (2007-08-08).

121 OM 17.7.1.1 – Revised 09-01-27.

122 OM 17.7 as issued on 09-01-27.

123 RCMP Use of the Conducted Energy Weapon (CEW), March 31, 2009.

124 Toronto Star, January 30, 2009.

125 Report on Conducted Energy Weapons and Excited Delirium Syndrome.

126 RCMP report titled Report on Conducted Energy Weapons and Excited Delirium Syndrome. Issued November 20, 2007.

127 Training sessions for police personnel who are to return to their various police agencies to certify other police personnel locally.

128 OM III.2.I.5.a.1, Revision 2821, 2001-12-20.

129 OM III.2.I.5.d.1, Revision 2821, 2001-12-20.

130 OM III.2.I.5.e.4, Revision 2821, 2001-12-20.

131 OM III.2.I.5.e.4, Revision 2829, 2002-03-14.

132 OM III.2.I.5.a.4, Revision 2837, 2002-05-15.

133 OM III.2.I.5.d.3, Revision 2861, 2002-06-19.

134 OM III.2.I.5.a.3-4, Revision 2876, 2002-09-25.

135 OM III.2.I.5.d.3, Revision 2894, 2002-10-30.

136 OM III.2.I.5.a.1, 2004-06-23.

137 OM III.2.I.5.a, Revision 2861, 2002-06-19.

141 OM III.2.I.5.b.1-4, 2004-06-23.

139 OM III.2.I.5.c.1, 2004-06-23.

140 OM III.2.I.5.d.1, 2004-06-23.

141 OM III.2.I.5.e.1-4, 2004-06-23.

142 OM III.2.I.5.f.5, 2004-06-23.

143 OM 17.7.2.3.1, 2005-06-01.

144 OM 17.7.5, 2005-06-01.

145 OM 17.7.3.3, 2005-09-08.

146 OM 17.7.6.3, 2005-06-01. See also Bulletin OM-445, 2003-10-09.

147 OM 17.7.3.3, 2005-10-19. See also Bulletin OM-465, 2005-07-12.

148 OM 17.7  – Revised 09-01-27.

149 RCMP CEW Testing Protocol – February 2009.

150 OM 17.7.3.2.1, 2005-09-08.

151 OM 17.7.3.1.4, 2007-08-08.

152 OM 17.7.3.2. Defined at 17.7.2.7, 2007-08-08.

153 OM 17.7.3.2.4, 2007-08-08.

154 OM 17.7.2.7.1, 2007-08-08.

155 OM 17.7.2.7.1 to 16, 2007-08-08.

156 OM 17.7.3.2.3, 2007-08-08.

157 OM 17.7.3.2.4.1.2 to 8, 2007-08-08.

158 OM 17.7.5.3, 2007-08-08.

159 OM 17.7.6.1.3, 2007-08-08.

160 OM 17.7.2.4, 2007-08-08.

161 OM 17.7.

162 OM 17.7.3.1 – Revised 09-01-27.

163 OM III.2.I.5.a.3 – 2001-12-20.

164 For example, see OM 17.7.3.2.1 – 2005-09-08.

165 OM 17.7  – 2007-08-08.

166 The investigation is associated with a related Chair-initiated complaint into the conduct of RCMP members present at, or engaged in, incidents where individuals in RCMP custody died following the use of a conducted energy weapon (CEW), which incidents have taken place anywhere in Canada between January 1, 2001 and January 1, 2009 (PC-2009-0055).

167 OM III.2.I.5.b.3, Revision 2822, 2001-12-20.

168 OM III.2.I.5.c.2.3, 2004-06-23.

169 Bulletin OM-478, 1.1.

170 OM 17.7 Revised 09-01-27.

171 Analysis of the Quality and Safety of the Taser X26 devices tested for Radio-Canada / Canadian Broadcasting Corporation by National Technical Systems, Test Report 41196-08.SRC. [PDF Format, 256.95KB] See also news item: RCMP to test some Tasers after CBC investigation.

172 RCMP website – RCMP to test M26 Model Conducted Energy Weapons.


Date Modified: 2010-04-21
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