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

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Appendix P – Conduct of RCMP Members in Light of CEW Policy

The following table illustrates the conduct of the responding members as it aligns with policy in existence at that time (October 2007):

Appearances are that prescriptive policy was generally complied with. Those areas in which compliance was not noted deal primarily with aspects of the application of policy involving judgement. In addition, the members appear not to possess an understanding and appreciation for the nature of the CEW as a weapon.

CEW Usage Report – Constable Millington

Constable Millington did file a CEW Usage Report (as noted in the table above) as required by RCMP policy. The report (Form 3996) contained a number of omissions and errors, which are a cause of concern. Specifically, they are as follows:

1. The ostensible reason Constable Millington and the others felt threatened by Mr. Dziekanski was that he had picked up a stapler which they were concerned he would use as a weapon. Constable Millington's CEW Usage Report, however, does not mention the fact that Mr. Dziekanski possessed a weapon. The box labelled Weapons Carried or Immediately Accessible by Subject was left blank. The stapler is mentioned in the Incident Summary box, however.
2. Although the model of the CEW used by Constable Millington is indicated (Taser® X26), the serial number of the weapon is not indicated. The serial number was captured elsewhere, such as in the investigation exhibit report; however, the failure of Constable Millington to include the serial number is significant in that absent the serial number, it is not possible to identify the particular weapon used in order to ensure that the correct unit was tested with respect to its operating properties and parameters of the electrical current produced by it.
3. The narrative provided by Constable Millington does not align with the Pritchard video coverage of the incident. In his report, Constable Millington indicated that:

   When members got closer to the male, he stepped back and away. The male then deliberately knocked items off of a desk nearby and grabbed an office stapler. The male swung the stapler wildly with his arm at the members. Cst. MILLINGTON unholstered the CEW and pointed it at the male subject. The male was not apprehensive upon seeing the CEW. The male raised the stapler in one hand and raised the other fist. The male then aggressively moved towards members on scene. Cst. MILLINGTON recognized the male's behaviour had escalated from resistant to combative, and deployed the CEW. The CEW was cycled once for the full 5 seconds, which stopped the male from moving, but he continued to walk towards members with his arms raised once the cycle was completed. Cst. MILLINGTON cycled the CEW a second time, after which members were able to wrestle the male to the floor. The male was still struggling at this time and Cst. MILLINGTON cycled the CEW again. However, the CEW electrical impulse was audible, which meant that at least one of the probes were [sic] not attached. Cst. MILLINGTON took the cartridge off of the CEW and used the push stun mode on the male's rear deltoid (upper back) area. At this point, members were able to control the male and get him into handcuffs.

The Pritchard video does support Constable Millington's contention that Mr. Dziekanski stepped back and away from the members shortly after they arrived. It does not, however, support Constable Millington's justification for unholstering the CEW when he stated that Mr. Dziekanski swung the stapler wildly with his arm at the members, that Mr. Dziekanski raised the stapler in one hand and raised the other fist, or that Mr. Dziekanski then aggressively moved towards members on scene. The video clearly demonstrated that at the time Constable Millington discharged the CEW, Mr. Dziekanski was standing at the counter with his arms by his sides.

Given that the stapler is clearly visible in his right hand after he was struck by the CEW probes, it is likely that Mr. Dziekanski did pick up the stapler as he approached the counter. However, since his hands were not visible in the video it is not possible to know at what point exactly when.

4. Constable Millington indicated in his Form 3996 that:

Cst. MILLINGTON unholstered the CEW and pointed it at the male subject. The male was not apprehensive upon seeing the CEW.

The Pritchard video suggests that after the responding members fanned out around Mr. Dziekanski (during which time Constable Millington appears to have unholstered the CEW) and prior to the discharge of the CEW, Mr. Dziekanski glanced at Constable Millington (to the far left of Mr. Dziekanski) for at most a second, just as the CEW was fired. In my view, Mr. Dziekanski did not have time to register apprehension or any other emotion prior to the deployment of the CEW.

I do not accept any of the versions of events as presented by the involved members because I note so many discrepancies in the detail and accuracy of the recollections of the members when tracked against video evidence.

All of the foregoing was canvassed and confirmed by evidence given by the responding members during the Braidwood hearings.

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