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 B
This part of the report will address what I consider to be the secondary 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.
It is incumbent on civilian police oversight agencies to ensure that investigative scrutiny is provided in an even-handed and objective manner. To that end, I have carefully reviewed the conduct of the RCMP members who responded to the complaint involving Mr. Dziekanski at YVR. In addition, I have carefully reviewed the Vancouver IHIT investigation of the death of Mr. Dziekanski to assess the issues relevant to my complaint.
The RCMP members of the Integrated Homicide Investigation Team (IHIT) involved in the investigation of the death of Mr. Dziekanski had the benefit of time and the ability to systematically conduct their investigation. The first responders, the four RCMP members who attended the scene, did not have the luxury of taking a protracted amount of time to verify facts or assumptions.
The public expects that both first responders and subsequent investigators will receive sufficient training and instruction to ensure that they are aware of and comply with applicable legislation and policies. The public also expects the guiding documentation and policy to be reasonable.
The CEW is a prohibited firearm.34 The Commission has been steadfast in its position that when used appropriately, the CEW can be an effective tool for the RCMP. The Commission has also maintained that the CEW causes intense pain, it may exacerbate underlying medical conditions and it has been used in situations where it is not justifiable nor in accordance with RCMP policy (known as "usage creep").
Conversely, claims have been made from various quarters that the CEW is a viable alternative to lethal force, that its use results in a lowered risk of injury to the responding police officers and to the subject of the CEW and that it is, in effect, a much more humane way of effecting control over an individual who is resistant to arrest or control.
Juxtaposed against these claims is the reality that because the CEW can also be considered a pain compliance tool, the Canadian Charter of Rights and Freedoms (the Charter) may become operative because of the nature and manner of deployment of the CEW in some circumstances. The courts have held that use of the CEW in cruel and unusual circumstances offended various sections of the Charter and amounted to an abuse of process, resulting in stays of the criminal proceedings against the accused.35
The CEW may be deployed in two modes–probe and push stun. Probe mode refers to the discharge of the weapon by firing a cartridge containing probes which lodge in the subject's body and are connected to the CEW by means of electrical wires. Push stun mode refers to the electrodes of the CEW being placed directly against the subject.36
Overarching all of the foregoing is the question of whether police officers appreciate the nature and quality of the pain being dispensed. As discussed in this report, an issue the members appear not to have contemplated is whether the application of a pain compliance technique was justified in this situation. Notwithstanding the fact that the CEW is a prohibited firearm, the IM/IM as it existed at the time of the death of Mr. Dziekanski categorized the CEW as an intermediate level use of force option in the same genre as OC spray.37
The Course Training Standard (CTS) for the RCMP CEW course allows for voluntary exposure of candidates to a CEW discharge, but the allowable time limit is two seconds, although some members have undergone the full five-second cycle. The discharge of a CEW is a full five seconds upon initial discharge; however, it can be disrupted by the user.
As discussed in this report at Appendix K, the output of some TASER® devices was questioned in a study commissioned by the Canadian Broadcasting Corporation (CBC) and published on December 2, 2008.38 In addition, the Government of British Columbia has conducted testing on a number of its Taser Model M26 CEWs and found that:
...80% of the devices failed to operate within the manufacturers specifications. The results also showed that 90% of these units produced less electrical output than would be expected, potentially presenting both public and officer safety risks.39
As a result, the RCMP on June 1, 2009 withdrew approximately 1,600 M26 CEWs from service nationally pending testing and/or replacement of some units with the newer Model X26. The RCMP has also conducted independent and random testing of some of its CEWs, as have some provinces.
TASER International training documentation notes that no deaths have been attributed to the TASER® but suggests that in any situation in which a person is displaying signs including bizarre or violent behaviour, breathing irregularities or loss of consciousness, medical assistance should be sought immediately.40 This suggestion is further supported by three TASER International training bulletins issued in 2005, 2006 and 2007.
Policy has consistently recognized the need to assess other means of intervening to calm or subdue a suspect, and has required from the outset (absent an operational situation which would preclude such a step) that members identify themselves as peace officers and issue a warning prior to deploying the CEW.41
The RCMP CTS for the CEW User Course42 was created in July 2001 and amended in May 2002 and October 12, 2005. The RCMP CEW course is 16 hours in length. The CTS indicates that this amount of time allows instructors to teach the necessary material and provides time for practice and scenario-based training.
The RCMP appears to accept the proposition that the CEW is a less harmful and reliable means of controlling individuals who fall within the parameters of acceptable CEW usage. In support of this position, the RCMP often relies on studies funded by TASER International which support this proposition. The Commission has noted various issues with TASER International-funded methodological research, specifically but not limited to, that the manufacturer appears to make unsubstantiated claims that are difficult to independently verify, their use of small control groups of healthy volunteers which does not reflect operational realities, and a general lack of wholly independent research.
Overarching the foregoing is the issue of quality control. From the time of the initial roll-out of CEWs in 2001, RCMP policy,43 until it was removed in the August 8, 2007 Operational Manual (the version in effect at the time of the death of Mr. Dziekanski) required that:
The Senior Armourer will be responsible for:
- maintaining a current record of all the CEWs acquired by the RCMP;
- maintaining a quality assurance program for the testing and evaluation of the CEWs and munitions; and
- replacing malfunctioning CEWs.
Notwithstanding the fact that the requirement to implement a quality control process was removed from policy, the Commission specifically asked the RCMP to identify the process through which it maintains quality control over its CEWs.
The RCMP responded that essentially, the only ongoing quality control process with respect to CEWs is that they are examined when first received by the RCMP Armourer in Regina, Saskatchewan, prior to distribution across the country. The examination does not assess the adequacy or consistency of the voltage delivered, but considers questions such as whether the unit is registered with a correct serial number, the battery pack fits properly, the internal clock is set to Greenwich Mean Time and the sights are aligned. A spark test is performed, but this is done by hand to visually ensure that a spark is present between the electrodes. No assessment of the actual voltage delivered by the unit takes place.
The response does not indicate that CEWs are periodically or routinely returned to the Armourer for voltage testing; therefore, my assumption is that they are not. Policy at the time of the YVR incident required that the CEW be returned to the Armourer if it is found to have malfunctioned or failed in operational usage, or if a download of data is required as part of an investigation.44
Although CEWs have currently been subjected to independent testing as part of an ongoing internal RCMP audit (see Appendix L, titled CEW Training), I find the RCMP process to be an inadequate level of quality control. I would expect an adequate level of quality control to include an assessment of the ability of the weapon to function within standard parameters when it is first received. I would also expect that CEWs would be subject to regular technical testing to ensure their continued reliability.
Recommendation
The RCMP should review the CEW quality assessment program as currently in effect and consider whether it should be enhanced to ensure that a high degree of confidence may be placed in the performance of in-service CEWs.
The CEW was first approved for RCMP use in 2001. Policy governing the use of the CEW was implemented by the RCMP and that policy has received a number of amendments over time.46 In the most recent revision, issued by the RCMP on January 27, 2009, policy was amended to recognize the high risk of death to acutely agitated or delirious persons47 and to clarify that RCMP members are expected to proactively request medical assistance if the CEW is deployed on such persons.48 Further, the RCMP Commissioner has determined that the CEW is only to be used where it is necessary to do so in circumstances of threats to officer or public safety.49
Until the current iteration of the RCMP CEW policy, the concept of excited delirium was included in CEW policy. RCMP Commissioner Elliott indicated on January 6, 2009 during a radio interview that he has asked for the term excited delirium to be removed from RCMP policy. The rationale was that RCMP members should not be expected to make what amounts to medical diagnoses when responding to a situation and determining the appropriate use of force option required. As noted, the term has now been expunged from the revised RCMP Operational Manual issued in January 200950 and replaced with a reference to agitated or delirious persons, which is intended to more broadly capture a large group of persons displaying behaviour posing a risk to themselves, the police or others.
Medical treatment for anyone who has been the subject of the deployment of a CEW has been contemplated pursuant to RCMP CEW policy since the inception of the weapon. Such treatment is at the discretion of the member(s) involved and is not mandatory.51 The initial supposition appeared to be that the subject will be lucid and ambulatory subsequent to CEW usage in that the policy requires the RCMP member to transport the subject to a medical facility, whenever possible, for examination and to record any injuries or other observable medical or physical afflictions caused by the CEW.52 The policy in place at the time of the YVR incident recognized the severity of the potential state of agitation of the subject prior to deployment and the need to provide medical care, particularly in those circumstances; current policy requires intervention of professional medical personnel when warranted.53
Medical caveats such as this do not serve to underscore in the minds of RCMP members that the CEW inflicts great pain on the recipient and that it is a potentially lethal weapon. In my view, if public confidence in the ability of the RCMP to use the CEW appropriately is to be maintained, the RCMP must demonstrate that its members use the CEW judiciously and with discretion. The weapon must not be used precipitously. To achieve this goal, I believe that the RCMP must amend its training regimen to underscore the dangers inherent in the use of the CEW by members.
As I stated before the Braidwood Commission:
If the state or its representatives want to introduce a device for use against a member of the public, it bears the onus of ascertaining what level of risk to the public flows from the use of the device. If there's any ambiguity and uncertainty, that doubt should be resolved in favour of the citizen.
At the time of the YVR incident (October 2007), the CEW was classified by the RCMP as an intermediate device. RCMP policy at that time was that weapons in this category could be used against subjects who exhibited resistant behaviour or more threatening behaviour, such as being combative.
When members are faced with situations posing the risk of death or grievous bodily harm, they are trained that the CEW is only appropriate if another member can provide lethal over-watch. This means that at least one other member should have a gun ready to shoot in case the CEW misfires or is ineffective and the threat is not neutralized.
In the YVR incident, three other RCMP members were present and were armed with their service pistols. The issue of lethal over-watch was not canvassed in statements taken from the responding RCMP members during the IHIT investigation, as it was not relevant to the circumstances.
Autopsies conducted on persons who have died proximate to CEW usage and scientific studies have not identified a causal link between the CEW and death. I am of the view that although there exists a paucity of scientific evidence pointing to the CEW being the cause of death or a prime contributing factor thereto, from a public policy perspective we must be circumspect. The RCMP has accepted in policy that the CEW may pose a risk to seriously agitated persons; therefore, the assumption should be that the CEW may cause harm as opposed to the view commonly held among police that the CEW is a less harmful and acceptable means of effecting an arrest.
I am not suggesting that the CEW should not be used. I am suggesting, however, that it only be used in circumstances in which such use is justifiable and necessary. The assumption should be that the CEW poses inherent risk and unless and until it can be demonstrated clearly that it does not, the bias should go to less usage, rather than more.
Crucial to the analysis of the appropriate use of the CEW is an awareness and understanding that the CEW delivers intense pain to the recipient of the deployment whether the CEW is used in probe or push stun mode. Because of the nature of the weapon, therefore, its use must be justifiable, judicious and proportional to the circumstances.
I have made my position on this issue known for quite some time. In my December 200754 interim report on RCMP use of the CEW, I stated:
The tragic occurrences associated with CEW use in the past few months have raised the level of public concern regarding the weapon. The RCMP relies upon studies that speak to the relative safety of CEWs as a less lethal technology. However, many of these same studies note the lack of research in relation to "at risk groups." It is imperative that research be continued to establish the safety levels for "at risk groups" and to determine whether, by virtue of the very symptomology exhibited by these groups (i.e. drug use or psychiatric disorders), they may be exposed to a disproportionate number of police interventions where CEW use may be deemed appropriate.
Further, an appreciation of the level of pain associated with the CEW is crucial to ensure not only the appropriate use of the weapon but also the avoidance of what the Commission has dubbed "usage creep," i.e. the trend toward using the CEW in circumstances for which its use was not authorized by RCMP policy. As I also noted in my December 200755 report on the use of the CEW:
The current approach by the RCMP clearly illustrates a shift in permissible usage from the original intent in 2001, which was more restrictive in that the weapon was to be used to subdue individual suspects who resisted arrest, were combative or who were suicidal. The Commission refers to this expanded and less restrictive use as "usage creep." This has resulted in deployment of the weapon outside stated objectives as illustrated by cases that have been reviewed by the Commission over the past six years where the individuals have exhibited behaviours that were clearly non-combative or where there was no active resistance.
TASER International states that the CEW in probe mode does not rely on pain to achieve compliance. The documentation with respect to the effects of CEW usage conveys that the pain component of the CEW is more benign than it really is. Virtually every person who has been the subject of a CEW deployment, whether voluntary or involuntary, refers to the experience as being extremely painful (as noted below). RCMP training pertaining to the CEW deals with the pain inflicted by the weapon in a relatively narrow and perfunctory manner.
As I noted in my June 2008 final report on the use of CEWs by the RCMP:56
When used in probe mode, it is rare that more than one (1) cartridge is fired and 66 percent of the time the weapon is cycled only once. Conversely, push stun is the mode more apt to be used multiple times. When push stun mode alone is used, it is used two or more times on 40 percent of occasions. This is significant and confirms a concern raised repeatedly by the Commission that push stun mode is the most susceptible usage subject to usage creep.
This is true in the case of Mr. Dziekanski also. The CEW was used in probe mode more than the norm. In addition, I find that the manner in which it was used in push stun mode was inappropriate. This type of inappropriate usage was identified in my earlier reports on the CEW.
In its training sessions for police "train the trainer" personnel,57 TASER International teaches that the concept behind the CEW in probe mode is that it incapacitates the central nervous system to achieve its goal of incapacitating the subject. The training indicates that the CEW does not rely on pain to achieve compliance. It overwhelms the central nervous system and achieves incapacitation.
The IM/IM describes intermediate devices as including OC spray and the CEW.58 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.59 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 neurological muscle control and pain in probe mode and solely through the means of a powerful localized pain stimulant when deployed in push stun mode.
The exercise of appropriate discretion is crucial in the decision to use the CEW. Some police officers do not appear to adequately comprehend the nature of the CEW as a weapon, i.e. the extreme level of pain associated with the use of the CEW or the risk to the health of the subject because the training provided to them does not require them to take such analyses into account at the time of deploying the CEW.
In light of the foregoing, my view with respect to the pain inflicted by the CEW, as expressed in my December 11, 2007 Interim Report on the RCMP Use of the Conducted Energy Weapon,60 has not changed:
Of note, regardless of the mode, the subjects will experience pain. However, little attention appears to have been paid to the level of pain induced by CEW application. The use of CEWs was reviewed in R. v. Hannibal, 2003 BCPC 0504. In that case, in which an RCMP member was charged with assault for an incident in August 2001, Judge Challenger commented, "No studies have been done with respect to the subjective experience of being tasered in comparison to conventional empty hand control (soft) techniques." However, an Amnesty International report contained the following anecdotal references:
According to [TASER International] they are one of the few non-lethal weapons effective in causing incapacitation without physiological injury. They have pointed out that any pain involved is transient, with no after-effects. However, officers subjected to even a fraction of the normal taser discharge during training have reported feeling acute pain:
"Bjornstad, who was jolted for 1.5 seconds as part of his training, said all of his muscles contracted and the shock was like a finger in a light socket many times over. 'who [sic] has experienced it will remember it forever...You don't want to do this. It's very uncomfortable...and that's an understatement.'" (The Olympian, 14 October 2002)
"It's like getting punched 100 times in a row, but once it's off, you are back to normal again." (The Olympian 2 March 2002)
"It felt terrible." "It hurts. I'm going to think twice before I use this on anyone." (two officers quoted in the Mobile Register 8 April 2002)
"It is the most profound pain that I have ever felt. You get total compliance because they don't want that pain again." (firearms consultant, quoted in The Associated Press 12 August 2003)
"They call it the longest five seconds of their life...it's extreme pain, there's no question about it. No one would want to get hit by it a second time." (County Sheriff, quoted in The Kalazazoo [sic] Gazette, Michigan, 7 March 2004):
In assessing the negative aspects of CEW deployment Judge Challenger wrote: "The RCMP and other forces should consider the taser's potential for superficial burning and tissue damage which can create scabbing and scarring. The taser creates extreme pain and can create instant, complete incapacitation. Conventional pain compliance techniques can be carefully controlled by the officer administering them. The amount of pain inflicted by the taser cannot be adjusted [emphasis added].'
The pain component of CEW use remains a subject largely left to anecdotal commentary and not sufficiently explored to assist in determining the appropriateness of its use in law enforcement interventions.
Statistically, CEW usage results in relatively few serious injuries or deaths when compared to the number of deployments. What statistics do not take into account, however, is the nature of the CEW as a weapon and whether the use of the CEW was appropriate in the circumstances. I believe that the equally pertinent study, therefore, should not be to examine how many people have been seriously injured or have died during or subsequent to CEW deployment, but whether the use of the CEW was appropriate in the circumstances of the deployment.
Given the injuries that have occurred subsequent to deployments of the CEW, the onus of demonstrating that the CEW is a viable response in the particular circumstances of its use must rest with the police. Pointing to statistics to show that in most deployments no serious or lasting injury is sustained by the recipient is not sufficient. Justification of its use must include an appreciation of the nature of the CEW, i.e. that the level of pain inflicted and the potential for serious bodily harm or death to the recipient was appropriate and necessary within the confines of a specific set of circumstances.
As noted above, on January 27, 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.61 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 are 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.
While I am in agreement with the RCMP's approach of providing more stringent controls on the use of the CEW, I am not convinced that its new threshold meets that test. Further, the necessary articulability with respect to the use of this weapon must include both objective and subjective elements. The member must lawfully be in the place where the CEW is deployed, he or she must have a subjective belief that the potential harm caused by the CEW is reasonable in the circumstances, and the conduct of the member must be reasonable in the eyes of an independent and objective person presented with the same set of circumstances.
RCMP members must be trained that they should be more circumspect in resorting to the CEW. While RCMP training does include a voluntary exposure to the CEW, such exposure is conducted, obviously, in controlled circumstances to ensure the safety of the member being exposed to the voltage, and in a non-confrontational situation. Clearly, field circumstances cannot be easily replicated.
Recommendation
The RCMP should continue to be involved in and stay abreast of current independent research on the use and effects of the CEW.
Recommendation
Notwithstanding the fact that the RCMP has (as of January 2009) amended its policy such that the use of the CEW is to be used in response to a threat to officer or public safety as determined by a member's assessment of the totality of the circumstances being encountered, the RCMP should clarify for its members and the public what the appropriate circumstances for using the CEW are and what threat threshold will be utilized to assess the appropriateness of such use.
Recommendation
The RCMP should consider a review of its training to ensure that its members are well versed in the potentially dangerous nature of the weapon and to ensure that training provided to members assists them in appropriately assessing the circumstances in which deployment of the CEW is justified, bearing in mind the degree of pain inflicted on the subject during the CEW deployment and the potential outcome of such deployment.
To reiterate, the Chair-initiated complaint as it relates to the interaction between the RCMP members and Mr. Dziekanski concerned compliance by the responding RCMP members with policies, procedures, guidelines and statutory requirements pertaining to the interaction with Mr. Dziekanski. Further detail and analysis of those policies and requirements are set out below.
As previously noted, the decision as to whether or not criminal charges were warranted in these circumstances has been addressed by the British Columbia Criminal Justice Branch and consequently is not the subject of this report.
Incident Management/Intervention Model
The RCMP utilizes the IM/IM to train and guide members in the use of force,62 promote risk assessment and depict various levels of resistance, behaviours and reasonable intervention options.63 At the time of Mr. Dziekanski's death, the IM/IM was predicated on the following seven principles:
- The primary objective of any intervention is public safety.
- Police officer safety is essential to public safety.
- The intervention model must always be applied in the context of a careful assessment of risk.
- Risk assessment must take into account: the likelihood and extent of life loss, injury and damage to property.
- Risk assessment is a continuous process and risk management must evolve as situations change.
- The best strategy is to utilize the least amount of intervention to manage the risk.
- The best intervention causes the least amount of harm or damage.
I believe that these final two principles are crucial to policing as provided by the RCMP, but in order for RCMP members to intervene appropriately, they must be trained in and cognizant of the nature of the various means of intervention available to them. As I have indicated in this report and in other reports I have issued, with respect to CEW deployment I do not believe that RCMP training teaches a realistic awareness of the nature of the CEW as a weapon. Accordingly, RCMP members do not have an appropriate awareness of the potential for harm and therefore the overall nature of the intervention they may undertake.
The IM/IM was amended by the RCMP in May 2009. The seven principles have been altered to six, as follows:64
- The primary duty of a peace officer is to preserve and protect life.
- The primary objective of any intervention is public safety.
- Peace officer safety is essential to public safety.
- The IMIM is consistent with federal statute law and common law authorities and in no way replaces or augments the law.
- The intervention model must always be applied in the context of a careful assessment of risk, taking into account the likelihood and extent of life loss, injury, and damage to property as a result of the intervention.
- Risk assessment is a continuous process and risk management must evolve as situations change.
I note that the final two principles enumerated in the IM/IM as it existed at the time of the death of Mr. Dziekanski have been excised from the current IM/IM. Although one might argue that the previous principles are subsumed in the current IM/IM, I am of the view that the principles as previously set out clearly capture the need to intervene to the lowest possible extent that will enable RCMP members to carry out their duties safely (taking into account the need to ensure the safety of both the police and the public) and effectively.
Further, I am of the view that despite the fact that using the least amount of force necessary is articulated in RCMP training, it should be emphasized that the primary goal should be de-escalation.
I believe that the principles espoused by Sir Robert Peel in 1829 are still relevant today. During my presentation to the Braidwood Commission I articulated four pillars upon which I believe public confidence in the police are founded. I stated:60
Policing in Canada is built upon the guiding principles of Sir Robert Peel. In particular, four principles strike me as paramount, and are as important today as they were to Peel in 1829.
First is the fact that the police can only perform their duties if they have the public's approval of their actions. Second is the reality that the police are the public, and the public are the police. This principle means that the police are acting as our agents in carrying out a general social obligation to preserve the peace.
Third, the police must use physical force only to the extent that is necessary to preserve public order. Finally, the police rely on the willingness of public cooperation to undertake their duties.
RCMP Training
Use of force experts, who teach police officers the concepts involved in determining risk and the appropriate level of response, have provided comment with respect to the use of force against Mr. Dziekanski.66 My difficulty with these comments is that I see a circular logic at work. Sergeant Brad Fawcett of the Vancouver City Police, and Corporal Gregg Gillis of the RCMP are the use of force experts who commented with approbation on the appropriateness of the force used by the responding members. These are the same persons who regularly lecture and train the police. From an objective point of view, therefore, a potential bias for the use of force training as provided to police is inherent and must be recognized. As a result, in the present case I have concerns that Sergeant Fawcett and Corporal Gillis gave input with respect to the appropriateness of the force used by the responding members.
If RCMP training is such that the CEW use is deemed appropriate when faced with the lowest level of risk presented by the subject's behaviour, it will accordingly be resorted to sooner and more often by RCMP members.67 That is, police officers may tend to resort to the CEW earlier in the mistaken belief that it is an appropriate response.
If a police officer acts as he or she has been trained, the actions of that officer may subsequently be justified by the trainer according to that training model. If the training model is in error, however, justification does not serve to make the officer response correct. In the matter under discussion, I do not believe that sufficient empirical data are available to accept the position of the RCMP that the CEW should be emphasized as a less harmful weapon.
The fact that a trainer or use of force expert says that a member acted according to policy does not make the actions of the member correct if the weapon is in reality more dangerous than training portrays it to be and, therefore, the training policy itself is flawed.
Through the IM/IM (as it then read) RCMP members are trained that they should use the least amount of force necessary to achieve the goals of policing, ensure public safety and minimize the risk and damage. Consequently, 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 the appropriate steps to assess the situation correctly to manage the arrest and take Mr. Dziekanski into custody by employing the minimum amount of force required.
In their training curriculum at the RCMP Training Academy (Depot Division, Regina), cadets are taught the gradations of officer intervention within the IM/IM framework, beginning with officer presence and verbal intervention, as well as CAPRA-based skills in problem solving. These aspects of training are focused on developing the necessary verbal skills which police officers rely on when confronting potentially volatile situations. In addition, cadets receive training on negotiation and mediation skills and at the mid-point of their Depot training they begin to make use of these skills in role play scenario-based interactions with actors posing as members of the public.
The goal is to teach RCMP officers to respond appropriately and to be able to recognize the need for and use of appropriate tools to de-escalate a situation before it spirals out of control.
Although cadets receive such training, I am not aware of ongoing in-service training for RCMP members to retain awareness of and continued proficiency in such de-escalation techniques.
Use of Force Report
On March 3, 2008, a Use of Force Report was provided to IHIT investigators by Sergeant Brad Fawcett, a member of the Vancouver Police Department.68
The involvement of Sergeant Fawcett came about due to a November 23, 2007 letter from Superintendent Wayne Rideout, Officer in Charge of IHIT, to Chief Constable Jim Chiu, Chief of the Vancouver Police Department. Superintendent Rideout requested Sergeant Fawcett's services to provide an expert opinion on the use of force used by the four involved members. The letter requesting Sergeant Fawcett's assistance did not specify the scope of review to be undertaken by Sergeant Fawcett, nor did it stipulate whether Sergeant Fawcett was to gauge the actions of the four RCMP members against RCMP policy.
For a number of reasons set out in Appendix O, I found Sergeant Fawcett's report not to be particularly informative and therefore I have not relied on it.
Finding
Although IHIT did engage the services of a use of force expert, that expert was not provided with adequate direction in terms of the questions to be considered, the scope of his work or the terms of reference he was to consider.
A secondary issue with respect to the use of the CEW concerns the need to perform a spark test when the weapon is signed out for use and the documentation of such a test post-incident. RCMP members are required to complete a CEW Usage Report (Form 3996) after an incident involving the CEW. Constable Millington did file such a report; however, the format of the report (Form 3996) does not require a member to indicate whether the CEW was spark tested prior to deployment. RCMP Operational policy states 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.69 According to the CEW download report, Constable Millington did perform such a spark test when he signed out the weapon.
TASER International, the manufacturer, has indicated that a "spark test" is the sole means in the field to ensure that the CEW is operating properly. A spark test should be conducted each time a CEW is signed out.
The RCMP is currently pilot testing a form known as the Subject Behaviour/Officer Response (SB/OR) to capture data pertaining to any use of force by an RCMP member, including the threatened use, un-holstering or deployment of the CEW. I understand that the SB/OR will come into full use in 2010 and that the CEW Usage Report (Form 3996) currently in use will then be dispensed with.
As noted above, CEW practice at YVR was that the weapon is signed out by the member. The Commission asked for a copy of the control log sheet on which Constable Millington would have signed out the CEW used by him on October 13/14, 2007. The RCMP advised that the control log sheet was never seized as evidence during the IHIT investigation, nor has it surfaced since. The RCMP believes that the sheet has likely been destroyed as part of its document management processes.
Recommendation
The RCMP should:
- Amend its Conducted Energy Weapon (CEW) Usage Reporting Form (Form 3996), to require that information concerning a spark test be captured as part of the CEW usage reporting process (or include such requirement in the forthcoming Subject Behaviour/Officer Response data base); and
- Edit its Operational policy to emphasize the importance of the spark test and clearly indicate that the spark test is mandatory to confirm proper functioning of the CEW.
Stemming, but separate from, the IHIT investigation into the death of Mr. Dziekanski, it was open to the RCMP to initiate an internal investigation into the actions of both the responding members and the media relations officers in order to ascertain whether disciplinary action was warranted. No such investigations were launched.
The authority to initiate such an investigation is pursuant to section 40, found in Part IV of the RCMP Act.70
The relevant section of Part IV of the RCMP Act reads as follows:
40. (1) Where it appears to an officer or to a member in command of a detachment that a member under the command of the officer or member has contravened the Code of Conduct, the officer or member shall make or cause to be made such investigation as the officer or member considers necessary to enable the officer or member to determine whether that member has contravened or is contravening the Code of Conduct.
Because YVR is located within the bounds of the RCMP Richmond Detachment, it was within the authority of the Officer in Charge of the Richmond Detachment to order a Code of Conduct investigation. Subsequent to the conclusion of such an investigation, the decision then rests with the appropriate officer,71 typically the Commanding Officer of the RCMP division in which the impugned member is serving, to decide whether or not formal, informal72 or no disciplinary action is warranted.73
The Code of Conduct of the RCMP is found at sections 38 to 58.7 of the RCMP Regulations, 1988.74 For the purposes of this discussion, however, the obviously relevant portions of those Regulations which could have been considered by the OIC of the Richmond Detachment are:
39. (1) A member shall not engage in any disgraceful or disorderly act or conduct that could bring discredit on the Force.
(2) Without restricting the generality of the foregoing, an act or a conduct of a member is a disgraceful act or conduct where the act or conduct
- (a) is prejudicial to the impartial performance of the member's duties; or
- (b) results in a finding that the member is guilty of an indictable offence or an offence punishable on summary conviction under an Act of Parliament or of the legislature of a province (SOR/94-219, s. 15).
45. A member shall not knowingly or wilfully make a false, misleading or inaccurate statement or report to any member who is superior in rank or who has authority over that member pertaining to
- (a) the performance of that member's duties;
- (b) any investigation;
- (c) any conduct concerning that member, or any other member;
- (d) the operation of the Force; or
- (e) the administration of the Force. (SOR/94-219, s. 18.)
Clearly, section 39(1) above could be relevant if the conduct of the responding member(s) was considered to have brought disgrace or discredit on the Force. In light of the discrepancies between the versions of events reported by the responding members and the Pritchard video, the OIC could have considered whether the responding members knowingly or wilfully made false, misleading or inaccurate statements to investigators, contrary to section 45. The same rationale could be applied to the motivation for some of the comments made by Sergeant Lemaitre, the initial media relations officer (MRO).
The Commission has not been provided with information from the RCMP pertaining to whether such an investigation was considered in the wake of the death of Mr. Dziekanski.
Notwithstanding any recommendation I might make at this point with respect to a review of the decision not to conduct such an investigation, the outcome is moot in that section 43(8) of the RCMP Act stipulates that no formal disciplinary hearing into an allegation that a member has contravened the Code of Conduct may be initiated more than one year from the time the contravention and the identity of that member become known to the Commanding Officer of the region in which the impugned member is serving. The identities of the responding members and fact of the death of Mr. Dziekanski were known to the OIC of the Richmond Detachment and to the Commanding Officer from October 14, 2007.
Recommendation
The RCMP should review its processes and criteria with respect to the initiation of an internal investigation into the conduct of its members to ensure consistency of application across the country.
Each of the responding RCMP members had been certified in the use of the CEW. Constable Millington, who actually carried and deployed the CEW during the incident, was certified in July 2007. Corporal Robinson, the shift supervisor, had been qualified but his CEW certification expired in April 2006. Both Constables Rundel and Bentley held valid certificates in the use of the CEW.
At the time of the incident, RCMP policy required that members be re-certified in the use of the CEW every three years. That policy has now been altered, and members must now re-certify annually in the use of the CEW.75
Notwithstanding Corporal Robinson's assertion during his testimony before the Braidwood Inquiry that his first aid certificate had lapsed in 2002, information provided by the RCMP indicates that each of the responding members held a valid certificate in first aid. For a full discussion of the certifications held by the responding members, please see Appendix M.
34 The CEW has been classified as a prohibited firearm since 1998. See Fact Sheets concerning the Firearms Act and Firearms Act (1995, c. 39).
35 Reviewing the Police Use of Tasers: Recent Developments Include Application of the Abuse of Process Doctrine 57C.R. (6th) 263. (Ass't Professor David McAlister). See also R. v. Walcott, 57 C.R. (6th) 223.
36 See OM 17.7.2 – as issued 09-01-27.
37 The recent changes to the IM/IM graphical model have led to modifications in the categorization of weaponry used by the RCMP. In the past, a distinction was made between impact weapons (e.g. batons and impact rounds) and intermediate weapons (e.g. CEWs and pepper spray). In a prior report on CEW use (RCMP Use of the Conducted Energy Weapon, Interim Report), the Commission recommended altering the CEW's placement on the IM/IM graphical model by elevating it to the level of impact weapons, the use of which was clearly identified as being appropriate when a subject's behaviour demonstrated higher levels of risk (e.g. when the subject was combative and not merely resistant). Now, both of these classes of weapons appear under the same heading in the graphical model and the distinctions in use are not readily apparent. However, it should be noted that members continue to be trained that appropriate use of the various weapons differs depending on the circumstances facing the member. Additionally, RCMP policy has been modified to stress that the use of the CEW is restricted to those instances when the subjects pose a threat to the safety of the public, the member or themselves.
38 CBC Testing of CEWs – Analysis of the Quality and Safety of the Taser X26 devices tested for Radio-
Canada. [PDF format, 260Kb]
39 See RCMP website RCMP to test M26 Model Conducted Energy Weapons.
40 TASER International Instructor's Training Course, p. 128 (on CD).
41 OM III.2.I.5.b.1, Revision 2861, 2002-06-19.
42 See Appendix K and Appendix L for further information concerning the CEW and RCMP CEW Training.
43 OM III.2.I.5 and OM 17.7.6.5.9 (2005-06-01).
44 OM 17.7.7.5 (2007-08-08).
45 A more detailed discussion of the evolution of RCMP CEW policy may be found at Appendix K.
46 The evolution of RCMP CEW policy is discussed in more detail at Appendix K.
47 OM 17.7.3.1.4 – Revised 09-01-27.
48 OM 17.7.3.1.4 – Revised 09-01-27.
49 Commissioner's remarks to SECU.
50 OM 17.7 – Revised 09-01-27.
51 OM 17.7.5 – Revised 09-01-27.
52 OM III.2.I.5.c, Revision 2822, 2001-12-20.
53 OM 17.7.3.4.1.5, 2007-08-08.
54 CPC Report titled RCMP Use of the Conducted Energy Weapon, Interim Report, December 11, 2007.
55 CPC Report titled RCMP Use of the Conducted Energy Weapon, Interim Report, December 11, 2007.
56 RCMP Use of the Conducted Energy Weapon (CEW), June 12, 2008.
57 Personnel who are to return to their various police agencies to certify other police personnel locally.
58 See Appendix U for a listing of intermediate devices.
59 In evidence before the Braidwood Inquiry, for example, Constable Rundel stated that he was trained that the CEW causes less harm to an individual than does OC spray or the baton. See Braidwood Inquiry, Rundel evidence, Feb 24, 2009, pp. 42, 80 and Feb 25, 2009, pp. 17, 50.
60 Interim Report on the RCMP Use of the Conducted Energy Weapon – What is a Taser®.
61 OM 17.7.1.4 – Revised 09-01-27.
62 A more thorough discussion of the use of force options may be found at Appendix L.
63 See the IM/IM schematic at Appendix U.
64 See Incident Management/Intervention Model.
65 Presentation to the Braidwood Inquiry, June 25, 2008.
66 Referred to here are Vancouver Police Sergeant Fawcett and RCMP Corporal Gillis.
67 The RCMP characterizes its use of force options in terms of the IM/IM, which conceptualizes the escalation/de-escalation of force during an interaction. Please see Appendix U, which sets out the types of devices considered as intermediate.
68 For a more thorough assessment of Sergeant Fawcett's Use of Force Report, please see Appendix O.
69 OM 17.7.7.2.2.2 as issued 09-01-27.
70 Royal Canadian Mounted Police Act, R.S., c. R-9, section 1, Chapter R10.
71 Defined at section 2(1) of the RCMP Act.
72 Defined at section 41 of the RCMP Act.
73 RCMP Act, section 43(1).
74 Royal Canadian Mounted Police Regulations, 1988. SOR 88-361.
75 OM 17.7.1.4 – Revised 09-01-27.