Report Following a Public Interest Investigation into a Chair-Initiated Complaint Respecting the Death in RCMP Custody of Mr. Robert Dziekanski
Appendix N – RCMP Use of Force Options
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 steps to manage the risk. To carry out this task, the RCMP members had a number of options available to them pursuant to the IM/IM. These included:
1. Tactical Repositioning
Tactical repositioning refers to a situation in which police refrain from confronting the suspect pending a greater tactical advantage. The IM/IM model provides that tactical repositioning may be used at any point in a situation:
- If doing so reduces the likelihood and extent of harm to the public;
- If fear of death or grievous bodily harm is identified, providing it does not expose others to injury or deadly force;
- If seeking assistance will help to ensure public and police safety;
- If buying time and gaining distance will help to ensure public and police safety; and
- If the member has ensured that the scene has been contained and there is little or no potential for harm.
During the Dziekanski incident, the members had the option of not confronting Mr. Dziekanski until they had all the relevant facts at their disposal. They could, for example, have canvassed the witnesses and YVR security present to determine the level of threat posed by Mr. Dziekanski. Mr. Dziekanski had already demonstrated erratic behaviour as well as a propensity for violence and he had damaged property. The members were unable to communicate with him. Instead of confirming the level of threat posed, the members made a decision to confront Mr. Dziekanski.
This is not to suggest that police officers should ignore an unfolding situation which requires immediate intervention. As I have noted, I do not believe that was the case in this situation and it was therefore open to the responding members not to take immediate action.
Constable Bentley stated that in his mind, Mr. Dziekanski changed from cooperative to combative behaviour when he grabbed the stapler. Although the members involved may have considered the demeanour of Mr. Dziekanski to be combative, they had the option of tactical repositioning to contain Mr. Dziekanski and maintain control, while observing his actions and attempting to find a less violent means of resolving the situation. That option was not exercised.
2. Officer Presence
The members attended the scene of the complaints. Initially, Mr. Dziekanski appeared to calm down, but within seconds, he put his hands in the air and walked away from the police officers with the members behind him directing him to the counter area. In the Pritchard video, Mr. Dziekanski can be seen looking at his luggage, while Corporal Robinson can be seen directing Mr. Dziekanski to the counter area, which is the direction taken by Mr. Dziekanski. While open to interpretation, the gesture by Mr. Dziekanski of putting his hands in the air and moving to the location as directed by Corporal Robinson may be an act of compliance, and not hostility.
Because the situation was immediately escalated, it cannot be known whether continued officer presence would have had the desired effect and defused the situation.
3. Verbal Intervention
Neither the RCMP members nor Mr. Dziekanski could verbally understand the needs of the other. Absent a Polish interpreter, and absent a significant effort to make contact through gestures and demeanour, the disconnection was bound to continue.
As the interaction progressed, the members did use hand gestures and directed Mr. Dziekanski to an area near the counter in the exit area. Mr. Dziekanski appears to have picked up an item (seen in the video to be an open stapler) perceived by the RCMP members to be a potential weapon.
Although the brief verbal interventions by the members were not having the desired effect, it is unfortunate that more time was not spent by the members to use gestures and sign language to calm Mr. Dziekanski and prevent the continuation of the offence. Certainly, the police needed to take control of the scene and ensure that Mr. Dziekanski was not able to effect further damage to property or to any person present. Further efforts to calm Mr. Dziekanski may or may not have had the desired effect. However, the fact that they were not attempted contributed to the escalation of the interaction.
4. Empty Hand Control
The next level of intervention according to the IM/IM is the use of empty hand control. This includes "soft" empty hand control processes such as joint locks (for example, applying leverage to the suspect's arm or leg joint(s) to create immobility), pain compliance, creating imbalance in the suspect and handcuffing the suspect.
This was an option that could have been used by the members without resorting to any higher level of force. There were, after all, four RCMP members who could potentially have wrestled Mr. Dziekanski to the ground and handcuffed him. The problem with such empty hand control (soft) is that to wrestle a person of Mr. Dziekanski's size (Mr. Dziekanski was approximately 177 cm tall [5' 11"] and weighed 86 kg [190 lbs]) and subdue and handcuff him, the risk is much greater that either Mr. Dziekanski or one of the RCMP members would have been injured. This risk was not specifically articulated by the members in their statements.
A second level of empty hand control, known as "hard" hand control process, was also open to the members. Hard empty hand control processes include punches, kicks and carotid holds. None of these were used against Mr. Dziekanski. In their statements, none of the members discussed in any detail the use or lack of use of empty hand control processes. In his statement, Constable Rundel indicated that he considered the use of "hand to hand" combat but did not feel that it was warranted.
Principles 1 and 2 (tactical repositioning and officer presence), respectively, of the IM/IM (above) are to ensure public safety and officer safety when determining the appropriate level of force to be applied during the intervention.
Because the CEW was deployed so quickly after the interaction between the RCMP members and Mr. Dziekanski, it is impossible to say whether empty hand control would have been effective, or whether Mr. Dziekanski would have calmed to the point that officer presence would have de-escalated the intervention. In light of the One Plus One Theory,178 however, the members were trained not to match Mr. Dziekanski's level of resistance, but to use one level higher.
5. Intermediate Devices
The IM/IM in place at the time of the death of Mr. Dziekanski describes the range of intermediate devices to include OC (oleoresin capsicum) spray, CEW and others.
OC spray was considered by the members. Both Corporal Robinson and Constable Rundel said that they considered OC spray but believed that because of the combative behaviour being exhibited by Mr. Dziekanski and the likelihood of contamination of the members and the public, the CEW was the best means to control Mr. Dziekanski. As discussed, none of the members discussed with or commented to the others as the incident unfolded, what option would be appropriate in the circumstances.
The Pritchard video,179 and Constable Bentley's statement, indicate that Constable Bentley had deployed his collapsible baton. Constable Bentley also said that he formed the opinion that it was possible that Mr. Dziekanski wanted to fight because of the broken debris (computer and chair) on the floor. Constable Bentley stated that he opened his baton when Mr. Dziekanski grabbed the stapler. He stated as well that his thought pattern was to consider the use of force model to apply the least amount of force that would accomplish the task (of taking Mr. Dziekanski into custody). Constable Bentley indicated that he did not know Constable Millington was going to deploy the CEW until it was discharged.
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. Statistical analyses indicate that the CEW appears to be effective in achieving this goal. 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 the means of a powerful pain stimulant.
The exercise of appropriate discretion is crucial in the decision to use the CEW. Police officers do not appear to comprehend the nature of the CEW as a weapon, i.e. the level of pain inflicted or the possibility that the CEW may cause the death of the recipient of the charge, because the training provided to them does not require them to take such analyses into account at the time of deploying the CEW.
It has been demonstrated that use of a CEW as opposed to a member's sidearm, has saved lives. The training necessary for police officers must address the need to apply judicious discretion in the decision to deploy the CEW.
6. Lethal Force
The IM/IM stipulates that lethal force, intentionally inflicting force which the actor knows creates a substantial risk of causing death or serious bodily harm,180 may only be authorized where there is a threat of death or grievous bodily harm to the RCMP member or a member of the public. No such threat existed in this situation. I accept that the responding members did not anticipate or foresee the death of Mr. Dziekanski.
178 RCMP members are trained to utilize one level of intervention higher than the demonstrated resistance level of the person with whom they are interacting (known as the 1 + 1 policy). While adhering to the principle of proportionate and reasonable use, the IM/IM authorizes graduated levels of intervention in a circular fashion where any level of intervention is available, depending on the level of risk posed by the person that is being dealt with. The concentric and overlapping circles present on the IM/IM signifies that there may be more than one option available to members and that the fluid network of the circles requires continual assessment and reassessment of risk.
179 Post-incident. Constable Bentley is seen on the Pritchard video collapsing his baton.
180 Black's Law Dictionary – Definition of deadly force.