Report Following a Public Interest Investigation into a Chair-Initiated Complaint Respecting the Death in RCMP Custody of Mr. Robert Dziekanski
Allegation 2 – Investigation of Mr. Dziekanski's Death
Part A
This part of the report will address what I consider to be the primary aspects involving the investigation by IHIT of the death of Mr. Dziekanski. For a more complete discussion of the issues, please see the appendices as referenced in the report.
According to its website, IHIT is:
responsible for investigating homicides, police involved shootings and in-custody deaths that occurred [sic] within the Lower Mainland areas policed by the RCMP, Abbotsford, New Westminster and Port Moody police departments.76
Although the IHIT teams are considered integrated, i.e. investigators from each of the four police agencies mentioned above participate in IHIT investigations, the team investigating the death of Mr. Dziekanski consisted only of RCMP members.
Central to the IHIT investigation is a consideration of primary responsibility to conduct such an investigation. The IHIT investigators took initial responsibility for the investigation upon their arrival and began to process the scene, take statements and collect evidence. The Officer in Charge of IHIT, Superintendent Rideout, said during a December 2008 media briefing that initially the IHIT team was conducting a sudden death investigation on behalf of the Coroner's Office, under the authority of the BC Coroner's Act (presumably because IHIT was of the view that no criminal offence had been committed). During the Braidwood Inquiry, however, he said that:
... our first thought process was advancing this case as it unfolded to a Crown counsel and perhaps a criminal court. So we, as – as when we were tasked with this investigation, IHIT's responsibility was to conduct an independent investigation of ... the death of Robert Dziekanski at YVR.
Superintendent Rideout also explained at the Braidwood Inquiry that as at the end of October 2007 he felt there were insufficient grounds to conclude that any of the RCMP officers involved had committed a criminal offence in relation to the death of Mr. Dziekanski. In mid-November 2007, he wrote to the B.C. Coroner's Service to indicate that a criminal investigation into the death of Mr. Dziekanski was underway by IHIT and that the results of the investigation would be submitted to Crown counsel for a decision as to criminal charges.
RCMP news releases in the days following the death of Mr. Dziekanski indicated that the investigation was criminal in nature and being conducted under the aegis of IHIT.77 On November 17, 2007 Deputy Commissioner Gary D. Bass, Commanding Officer of the RCMP's "E" Division (British Columbia) mentioned in a press release the ongoing IHIT investigation.78
The IHIT never publicly relinquished jurisdiction to investigate the matter as a criminal investigation, and ultimately submitted a Report to Crown Counsel pertaining to the investigation. The submission of the Report to Crown Counsel allowed the British Columbia Criminal Justice Branch (BC Justice) to consider whether criminal charges against any of the responding members were appropriate. No charges were approved.79
I am concerned that the nature of the investigation was not apparent to the investigators, i.e. whether they were conducting a criminal investigation or an investigation under the BC Coroner's Act. For example, investigators appear to have been of two minds with respect to the seizure of evidence. Exhibit reports were completed with respect to physical evidence (such as the CEW, probes and wires) at the scene which was directly related to the death of Mr. Dziekanski. Other evidence, such as the Pritchard video, was not seized but was "borrowed". Had the investigation been treated as a criminal investigation from the outset, however, IHIT investigators likely would not have been so ambiguous in their approach.
I note that early in 2009 the RCMP "E" Division began to consider a draft Memorandum of Understanding with the BC Coroner's Office and other police agencies in the province with respect to the provision of operational assistance under their respective mandates. If signed, this document will represent a significant step forward in achieving a coordinated approach to such investigations.
Recommendation
I reiterate my recommendation from my report on the Police Investigating Police (August 2009) that all RCMP member investigations involving death, serious injury or sexual assault should be referred to an external police force or provincial criminal investigation body for investigation. There should be no RCMP involvement in the investigation. If, however, the RCMP continues to investigate such matters, then I recommend that the RCMP implement clear policy directives that all investigations in which death or serious bodily injury are involved and which involve RCMP members investigating other police officers will be considered criminal in nature until demonstrated not to be.
I have concerns with respect to certain aspects of the investigative approach taken by IHIT and with information released to the public through the media.
Presence of Corporal Robinson at the Richmond Detachment Briefing
On October 14, 2007 an IHIT briefing was held at the Richmond Detachment. Present were the IHIT investigative team and media relations officers (MRO). At some point during the briefing, Corporal Robinson, one of the involved members, was present and related to the IHIT members his perception of events. As is noted in more detail below at Appendix S (Media Releases), it is possible that to some extent the information provided to the media by the MRO in the early days of the investigation was coloured by Corporal Robinson's input.
Staff Sergeant (then Sergeant) Attew, the IHIT team commander at that time, stated that he was not aware that Corporal Robinson was one of the four involved members or he would not have allowed Corporal Robinson to attend. Superintendent Rideout, who was not present at the briefing, has indicated that he would not have allowed Corporal Robinson to attend because of the obvious potential to taint the objectivity of the investigation. The Richmond Detachment MRO, Corporal N. Basra, was not present at the IHIT briefing, but stated that she would not have allowed an involved member to attend because of the possibility of inadvertently adopting a position advanced by that involved member which could then make its way to the media by mistake.
The responsibility to ensure that the integrity of the investigation was maintained fell to the senior IHIT member at the briefing. As team commander at the time, that was Staff Sergeant Attew.
Overarching the decision to allow Corporal Robinson to attend the IHIT briefing is the apparent lack of certainty on the part of IHIT investigators in the early stages of the investigation with respect to the nature of the investigation. When interviewed by the Commission, Superintendent Rideout took the position that the IHIT investigators had no evidence of a criminal offence having occurred, and therefore the incident was not initially treated as a criminal investigation. It is possible that information provided to the media could have been predicated on the same assumption, resulting in a more relaxed attitude by the MRO.
Finding
Corporal Robinson, as an involved member, should not have been permitted to attend the IHIT briefing held at the Richmond Detachment on October 14, 2007. Sergeant Attew failed to ensure that only appropriate RCMP members were present during the briefing.
Pritchard Video
The video taken by Mr. Pritchard at YVR of the incident involving Mr. Dziekanski was purportedly "borrowed" from him by Constable Patrick Mulhall, an IHIT investigator, on the night of the incident (October 14, 2007).80 According to documents filed by Mr. Pritchard during his attempts to recover the video,81 he was told by Constable Mulhall that the video was to be copied by the RCMP and that it would be returned to him within 48 hours. Constable Mulhall subsequently contacted Mr. Pritchard and informed him that the time of return could be one and a half to over two years (approximately) because it would be used at a Coroner's Inquiry. This information is confirmed in a note to file by Constable Mulhall. In the same note, Constable Mulhall indicated that the video was not returned because Superintendent Rideout, the Officer in Charge of IHIT, had decided that it should be retained pending completion of the investigation by IHIT. It was confirmed that Superintendent Rideout had made the decision to retain the Pritchard video on October 22, 2007 and that by October 19, 2007, most (not all) of the witnesses had been interviewed.
During his interview with the Commission, Superintendent Rideout stated that he believed that the video could have been seized, and not "borrowed", pursuant to provisions of the Criminal Code or the BC Coroner's Act. He was not able to offer an opinion as to why these provisions were not exercised.
Mr. Pritchard initiated legal proceedings to recover his video, which ultimately was returned to him prior to litigation taking place.
Given that the video was not initially seized from Mr. Pritchard but was obtained with his consent and acquiescence, the RCMP had no authority to retain the video when Mr. Pritchard asked for its return. If the video was considered to be seized, this fact should have been clearly communicated to Mr. Pritchard. Either way, it was unclear to Mr. Pritchard what the status of his property was.
I have reviewed the Vancouver Police Department policy82 on obtaining video relevant to an investigation. I commend that organization for putting in place what I consider to be clear and practical policy on the issue. The RCMP may wish to consider this as a model for similar policy.
Recommendation
Given the proliferation of recording devices, it is anticipated that incidents in which RCMP members will seek to obtain private video or audio recordings will potentially occur more frequently in the future. Whether the police seize a video or audio recording of an event or obtain it on consent from a member of the public, the police must know and advise the public of the authority under which the video or audio recording is obtained. I recommend that the RCMP provide clarification for members with respect to obtaining video or audio recordings of an event.
The RCMP has been criticized with respect to certain statements made by its members in the media following the death of Mr. Dziekanski.83 On November 13, 2007 the British Columbia Civil Liberties Association (BCCLA) made a complaint84 to this Commission, pursuant to Part VII of the RCMP Act. The complaint contained a number of allegations with respect to some of the RCMP media statements made in the days following the death of Mr. Dziekanski and with respect to the possession of the Pritchard video by the RCMP. The BCCLA complaint also alleged that the RCMP provided a subjective version to the public of the events which led to Mr. Dziekanski's death.
As per process under the RCMP Act, the complaint was referred to the RCMP for investigation. In a report dated December 23, 2008 and signed by Chief Superintendent Rob Morrison, Officer in Charge of Operations Strategy Branch, "E" Division, Vancouver, provided to the BCCLA, Chief Superintendent Morrison stated that the RCMP investigation found no basis in any of the allegations made by the BCCLA. He went on to say that Sergeant Lemaitre (the RCMP media relations officer) was provided operational guidance by him (Chief Superintendent Morrison) with respect to keeping notes.
The BCCLA subsequently requested that I conduct a review of the adequacy of the RCMP public complaint investigation. Since that review is inextricably linked to this investigation, I have provided my review of the RCMP Part VII investigation in this report. The review can be located at Appendix C to this report.
During a press conference on December 12, 2008,85 Superintendent Rideout advised that he recognized that some information as provided to the public in the early stages of the investigation was incorrect and inconsistent with information obtained through the investigation. He then went on to say that although the RCMP knew of the errors, they were not corrected because of the ongoing investigation and because of other factors, such as awaiting the decision by BC Justice as to whether criminal charges would be brought against the RCMP members involved.
In evidence provided to the Braidwood Inquiry on May 6, 2009, Superintendent Rideout stated further that the release of certain information pertaining to particular aspects of the investigation was, in his view, overly specific and a potential threat to the integrity of the investigation of the death of Mr. Dziekanski. As a result he replaced Sergeant Lemaitre, the media relations officer who had been the RCMP media lead, with Corporal Carr, a media relations officer attached to IHIT. Superintendent Rideout stated that although he was aware of the inaccuracies, he did not correct the public record because of what he perceived as the potential impact on the fairness of any subsequent proceeding, such as a criminal trial (in the event charges were warranted), before a coroner's inquest or before a commission of inquiry such as the Braidwood Commission.
Arguably, correcting relatively straightforward inaccuracies such as the number of members present or the number of times the CEW was cycled would not have compromised the position of the RCMP vis-à-vis any criminal investigation of the events. It is incumbent on the RCMP to take all reasonable steps to confirm information prior to it being provided to the public and to correct inaccuracies when they are found, unless an overriding rationale exists as to why that information should not be made public. Failing to do so perpetuates concerns that the police are not conducting a transparent and impartial investigation into its members.
At the same news conference, Superintendent Rideout was asked whether the officers involved intended to deploy the CEW on Mr. Dziekanski whether or not he had picked up a weapon (the stapler). Superintendent Rideout responded that the IHIT investigation canvassed all aspects of the event, and concluded that the responding RCMP members deployed the CEW because of the perception that Mr. Dziekanski's behaviour was extraordinary and combative.86
In that same exchange during the December 12, 2008 news conference, Superintendent Rideout also said:
While enroute to responding to the incident, the officers received update information about the situation through the radio. They were advised on the nature of the complaint that they were responding to. By policy, their duty necessitated them to take Mr. Dziekanski's [sic] into custody. They would be making assessment as to how they would do that while they were enroute, based on all available information to them. We know that occurred.
This statement begs the question as to whether IHIT had any knowledge of the responding members having discussed the use of the CEW prior to their arrival at YVR, or had colluded or concocted a story to the contrary. This was put directly to Superintendent Rideout during his interview with the Commission. Superintendent Rideout categorically denied that IHIT had or has any such knowledge.
This question was also posed to the RCMP by the Commission. The RCMP has advised me that it has examined the files and audio recordings related to this issue and cannot locate any indication that IHIT had any such knowledge.
The primary questions to be asked with respect to media releases are whether, over time, the media releases provided by the RCMP were fair and objective or whether they were to any degree self-serving and defensive of RCMP members and their conduct. Although I cannot state categorically that media releases were provided to protect or enhance the image of the RCMP, I have concerns that some of the information provided to the media did just that. This issue is discussed in more detail in Appendix S (Media Releases) to this report.
The issue of the impression left by RCMP media releases was also discussed in my Final Report on Chair-Initiated Complaint into the Shooting Death of Ian Bush – November 28, 2007.87 In that decision, I recommended that [t]he RCMP develop a media and communications strategy specifically for police-involved shooting investigations that recognizes the need for regular, meaningful and timely updates to the media and to the public. In addition, the media and communications strategy should include a publicly available general investigative outline of the steps to be taken and the anticipated timeline for each step.
Finding
The RCMP should have released certain information to the media which would have served to clarify information pertaining to the death of Mr. Dziekanski and correct erroneous information previously provided without compromising the IHIT investigation.
Recommendation
I reiterate my recommendation in the Ian Bush decision that [t]he RCMP develop a media and communications strategy specifically for police-involved shooting investigations that recognizes the need for regular, meaningful and timely updates to the media and to the public. In addition, the media and communications strategy should include a publicly available general investigative outline of the steps to be taken and the anticipated timeline for each step. I also expand my recommendation to cover all in-custody death investigations.
A determination with respect to the cause of Mr. Dziekanski's death is outside the scope of this report; however, some information regarding the medical assessment is provided below.
An autopsy was performed by Dr. Charles Lee on Mr. Dziekanski on October 16, 2007. Dr. Lee stated in his autopsy report that the cause of death cannot be conclusively determined and that a pre-existing heart condition of Mr. Dziekanski combined with signs of chronic alcoholism and being pinned in the prone position as he was being subdued, may have led to a fatal arrhythmia.88 Dr. Lee indicated as well that although Mr. Dziekanski was agitated, he likely did not suffer of delirium. The autopsy of Mr. Dziekanski found no trace of alcohol or drugs in Mr. Dziekanski's body. Dr. Lee ruled that the death of Mr. Dziekanski was best characterized as sudden death following restraint.
Subsequent to Dr. Lee's autopsy, Dr. Michael Pollanen, the Chief Forensic Pathologist for Ontario, was asked by IHIT investigators to review the autopsy findings of Dr. Lee and provide a second opinion on the findings. After reviewing the autopsy report and supporting medical documentation and evidence collected by Dr. Lee, as well as viewing video and photos, Dr. Pollanen concluded that:
- Robert Dziekanski did not die of the effects of a physical injury, the toxic effects of a drug, or an acutely fatal natural disease or condition. There are at least four variables that could be co-factors in death: an agitated state, restraint in the prone-position, the effects of a taser discharge and chronic alcoholism.
- Robert Dziekanski did not die of a taser-induced cardiac arrhythmia.
- There is competing scientific evidence on the putative adverse non-cardiac effects of a taser discharge in animals and man. If Robert Dziekanski's death was caused, in part, by the adverse effects of an agitated state, then we need to keep an open mind about the putative role that the taser discharge may have played in indirectly contributing to death, since Mr. Dziekanski appears more (dis)stressed and agitated after the deployment of the taser.
For additional information concerning the medical assessments, please see Appendix T.
Reference was made by Dr. Lee and by Dr. Pollanen to Mr. Dziekanski being placed in a prone position while being restrained and the possibility that this position, coupled with a state of high agitation, can lead to death.
I note from my review of the video of the arrest of Mr. Dziekanski, that Corporal Robinson is seen to be apparently placing weight on Mr. Dziekanski's upper body for approximately 40 seconds during the struggle, while Mr. Dziekanski was in the prone position. This is corroborated by Corporal Robinson's statement to IHIT investigators and statements of other responding RCMP members during the incident. I note that during his evidence before the Braidwood Inquiry, Corporal Robinson denied having placed an inordinate amount of his weight on Mr. Dziekanski's neck area.
While not conclusive or determinative of the cause of death, and based on the comments of the pathologists in this case, it is my belief that positional asphyxia may occur independent of other contributing factors such as delirium. As noted above, Dr. Lee indicated that he did not believe that Mr. Dziekanski suffered from delirium.
Whether Mr. Dziekanski would have survived had the struggle with the RCMP members been shorter, or had he been moved to a full recovery position immediately after his arrest, or had the handcuffs been removed sooner, cannot be known.
A 2005 decision of the British Columbia Police Complaint Commissioner89 dealt with positional asphyxia causing death. In that decision, the Commissioner also discussed positional asphyxia vis-à-vis excited delirium and other causes of irrational behaviour. He recommended that police should receive regular and updated training on these issues and commented on issues related to officer and public safety, and the need to quickly obtain medical assistance when necessary to protect the person displaying such behaviour.
Recommendation
The RCMP should immediately conduct a review of its policies and training regimen to ensure that members are adequately trained with respect to recognizing the risks inherent in, and signs of, positional asphyxia and in taking steps to mitigate those risks.
Criticism has been levelled at the RCMP investigation by some because of travel to Poland by IHIT investigators,90 citing such travel as an attempt to discredit Mr. Dziekanski and having no link to investigative necessity. During a news conference in December 2008, Superintendent Rideout provided an explanation for the travel to Poland.
His position was that such travel was necessary to seek background and potential evidence which was available in Poland. Further, Superintendent Rideout has indicated that such additional information had been requested by the medical experts who attempted to determine the cause or causes of Mr. Dziekanski's death. I note that a number of the expert reports prepared subsequent to the post mortem examination of Mr. Dziekanski indicated that background information pertaining to Mr. Dziekanski may assist in determining the cause of death.
Those medical experts, however, were focused on the cause of death, and not the nature or the manner of death. In my view, therefore, the travel goes to the nature of the investigation being conducted. If the IHIT team was conducting a Coroner's Act investigation, i.e. to determine the cause of death, the travel may have been deemed necessary, but I would expect that acquiescence from the Coroner's Service would have been sought prior to embarking. If the investigation was criminal in nature, an awareness of the events leading up to the death may assist in determining culpability but, again, I would have expected a clearer rationale for the travel.
The travel of IHIT investigators to Poland was not carried out pursuant to the Mutual Legal Assistance in Criminal Matters Act (commonly known as an MLAT request), but was arranged on an ad hoc basis as between IHIT and Polish authorities. Canada and Poland have had a bilateral assistance agreement in place since 1997.91
During his interview with the Commission, Superintendent Rideout stated that he participated in the travel to Poland because he wanted to uncover any available information to explain why Mr. Dziekansi acted as he did at YVR. He said that the Coroner appeared not to be interested in Mr. Dziekanski's behaviours prior to his death, but he (Superintendent Rideout) felt that physical and mental health issues as they related to Mr. Dziekanski were relevant. Superintendent Rideout pointed out that he did not accede to the travel because of the profile of the investigation. He said the trip was not intended to discredit Mr. Dziekanski and that he would have conducted such a background investigation for any in-custody death file.
The reasons for undertaking such travel could include furthering a criminal investigation, providing assistance to the Coroner's Service or in support of a civil matter. The RCMP has not been clear in any official release as to the nature of the travel or its goals and objectives, thereby contributing to the perception of partiality.
76 See IHIT – Integrated Homicide Investigation Team (IHIT).
77 See Update on Custody Death at Vancouver Airport.
78 See Vancouver Airport Incident – Public Statement by the Commanding Officer, RCMP "E" Division.
79 Please see the section of this report discussing the role of BC Justice.
80 Mr. Pritchard was initially interviewed by Constable Rundel on October 14, 2007 shortly after the incident. The interview was terminated early by Corporal Johal of the Richmond Detachment, according to Rundel testimony during the Braidwood Inquiry (February 23, 2009, p. 80).
81 Statement of Claim dated October 25, 2007.
82 See Refresher Bulletin
Authority to Seize Photographic Equipment from Citizens or Media. [PDF Format, 18.4KB]
83 The issue of media releases is discussed in more detail at Appendix S.
84 See Appendix C.
85 See YVR News Conference Statements – A/Commissioner Al Macintyre – "E" Division CROPS Officer, December 12, 2008.
86 See YVR News Conference Statements – A/Commissioner Al Macintyre – "E" Division CROPS Officer, December 12, 2008.
87 See Final Report on Chair-Initiated Complaint into the Shooting Death of Ian Bush (November 28, 2007 File No.: PC-2006-1532
88 Arrhythmia is an abnormal heartbeat. See Arrhythmia, The Heart and Stroke Foundation.
89 Reasons for Decision re: Benny Matson, March 22, 2005.
90 Further information on this issue may be viewed at Appendix R to this report.
91 1997 Canada Gazette Part I, p. 2060 (Vol. 131, No. 29). See MUTUAL LEGAL ASSISTANCE TREATIES STATUS AS OF MAY 31, 2004.