Report Following a Public Interest Investigation into a Chair-Initiated Complaint Respecting the Death in RCMP Custody of Mr. Robert Dziekanski
Allegation 1 – RCMP Conduct and the Death of Mr. Dziekanski
Part A
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.
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.
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:
Comments with respect to the response by the RCMP members are predicated on policy in effect at the time of the YVR incident.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.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,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.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.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)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,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!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.
Finding
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.
Finding
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.
Finding
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.
Finding
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.
Finding
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.
Recommendation
The RCMP should consider designing and implementing training for its members in techniques to communicate with persons who cannot verbally communicate with them.
Corporal Robinson18 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.19 The download report noted the following CEW activations:
- 2007-10-13 19:55:33 hours one- (1) second [spark test20];
- 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)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.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.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,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,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.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.
Finding
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.
Finding
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.
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.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"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.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.
Finding
Corporal Robinson did not adequately monitor Mr. Dziekanski's breathing and heart rate.
Finding
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.
Recommendation
RCMP detachment familiarization procedures should include a detailed review of available medical facilities and equipment.
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 3.30
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.
Finding
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.
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 principles31 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.32
Finding
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)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.
Finding
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.
Finding
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.
Finding
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.
Finding
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.
10 The authority for police to use force flows from section 25 of the Criminal Code of Canada, which 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. That authority is circumscribed by section 26, which stipulates that the person who exercises such force is criminally responsible for any excess force used according to the nature and quality of the act that constitutes the excess. Section 27 provides that a person is justified in using as much force as is reasonably necessary to prevent the commission of an offence for which a person may be arrested without warrant, or that would be likely to cause immediate and serious injury to the person or property of anyone, or to prevent the commission of such an offence.
11 See Chronology of Events.
12 All references in this report to the baton are to the ASP baton.
13 In evidence before the Braidwood Inquiry, both Constables Rundel and Bentley stated that they saw their roles as support to Constable Millington as the lead investigator. Constable Bentley stated that Corporal Robinson was present as their supervisor.
14 Constable Millington said in his evidence during the Braidwood Inquiry that he was not aware that Corporal Robinson had directed Mr. Dziekanski toward the counter area.
15 See definition found in Appendix O.
16 The Pritchard video indicates that Mr. Dziekanski's shirt was not tucked into his trousers, but was hanging loosely.
17 OM 17.2.2.1.
18 Corporal Robinson's CEW certification had expired at the time of the incident and he was slated to be re-certified in late 2007.
19 Post-incident the data contained in the Model X26E Taser® used by Constable Millington was downloaded by Constable Craig Baltzer of the Delta Police Department, Delta, British Columbia. On October 24, 2007, at the time of the download, Constable Baltzer was a 21-year member of the Delta Police Department and had been a Certified Firearms Trainer for the Department since 1993, full time since 2001. In that time Constable Baltzer had also been certified as a Provincial Use of Force Instructor and had been certified by TASER International as a Master Taser® Instructor and Taser® Armorer.
20 OM 17.7.7.2.2.2 indicates 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.
21 Described further below and at Appendix U.
22 OM 17.7.3.1.4.
23 OM 17.7.3.2.3.
24 OM 17.7.3.1.3.
25 The model used by the RCMP to train its members in the analysis of risk during police response situations. CAPRA is an acronym standing for the stages included in this problem-solving model: Client/Acquiring and Analysing Information/Partnerships/Response/Assessment and Continuous Improvement. The CAPRA model requires members to consider all relevant situational factors when determining what actions to take including whether to use force and, if so, the necessary amount of force to use under the circumstances. Situational factors are as varied as the incidents to which they apply and may include the number of subjects being dealt with, their size and demeanour, whether they are armed, the number of members, the lighting, environmental conditions, etc. The CAPRA model is explained further at Appendix O – Use of Force Report.
26 The autopsy of Mr. Dziekanski noted one mark on his chest consistent with a CEW probe. The other probe was found lodged in Mr. Dziekanski's shirt, which could account for the intermittent contact as the shirt moved closer to or further from his body.
27 The City of Richmond, BC Web page on medical emergencies recommends performing CPR only if the victim is unconscious, is not breathing and has no signs of circulation. See Medical Emergencies.
28 Hobbles are a means of tethering the feet and hands of subjects who are extremely violent.
29 BC Ambulance personnel testified at the Braidwood Inquiry that medical responsibility for a patient is transferred from the police to fire and/or ambulance personnel who attend. Testimony of Mike Egli, March 26, 2009, p. 84.
30 "Code 3" is a term generally meaning for emergency personnel to respond at once with lights and siren.
31 A listing of these principles is found in RCMP policy.
32 RCMP Use of the Conducted Energy Weapon (CEW) Final Report, June 12, 2008, p. 7.
33 In his evidence during the Braidwood Inquiry, Constable Millington indicated that he completed Form 3996 on October 18 or 19, 2007 and not prior to the completion of his shift on October 14, 2007, the night of the incident, as required by RCMP policy.