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 B
This part of the report is intended to address what I consider to be the secondary aspects of the IHIT investigation of the death of Mr. Dziekanski. For a more complete discussion of the issues, please see the appendices as referenced in the report.
As part of their duties, police officers are required to document their involvement in events which occur as a result of their employment and to provide that documentation to their employer. Such documentation must also be disclosed by operation of law to defence counsel or as directed by the courts with respect to judicial processes. Further, in order for a police officer to bring him or herself within the confines of protection offered by section 25 and other relevant sections of the Criminal Code, he or she must provide sufficient information to demonstrate that at the relevant time he or she was a peace officer engaged in the lawful execution of his or her duty and using only as much force as was necessary for that purpose.92
As I noted in my report on the death of Ian Bush:93
As a general rule, persons in Canada are under no legal obligation to provide a statement to the police. The police may request that a person provide a statement to them during an investigation but, absent some statutory or common law duty to comply, they have no means to enforce the request. If the police have reasonable grounds to arrest a person and keep them in custody, the police may attempt to interrogate the person in circumstances where the person's liberty has been taken away from them, but there is still no requirement that the person cooperate with the police.
RCMP members are required to provide an "accounting" of their activities when directed to do so. This is termed a "duty to account" statement. The authority to compel RCMP members to provide a duty to account statement is derived from the fact that RCMP members are required to obey a lawful order from another RCMP member who is superior in rank or who has authority over the member. There is no similar requirement for ordinary citizens in the ordinary course of police investigations.
Given the mandatory nature of duty to account statements, they are likely not voluntary and not admissible in criminal proceedings. It is clear that the duty to account is primarily viewed as an administrative process. For example, it may be used for the purpose of code of conduct proceedings. Although the duty to account is not specifically considered part of the criminal investigation process, this type of statement can provide general information from which to commence a criminal investigation.
One statement taken from one of the responding members was considered by IHIT investigators to be a duty to account statement. This was a statement taken by Corporal D. Brassington from Constable Millington at the YVR RCMP sub-detachment office in the hours following the incident. According to the summary contained in the Report to Crown Counsel, when Corporal Brassington arrived all of the responding members (Corporal Robinson and Constables Millington, Rundel and Bentley) were together in the sub-office, along with Staff Relations Representative (SRR)94 Corporal Ingles. Corporal Ingles indicated to Corporal Brassington that he had spoken with Constable Millington.
According to information before the Commission, many RCMP members are of the view that there exists an unwritten rule that members will provide what amounts to a duty to account statement following an incident. Such statements are at times taken following a meeting between the SRR and the member involved.
The requirements of the duty to account statement must be clear to all RCMP members. Although some divisional guidelines do contemplate the duty to account,95 that is not currently the case within the RCMP nationally.
The role of the SRR is not to provide legal advice. Since SRRs do not provide legal counsel for RCMP members, conversations between the involved member and the SRR are not privileged in the legal sense, although within the RCMP they are considered confidential.
Absent explanations, the issue here is the perception such a meeting conveys. Why did the SRR meet with all of the members involved? Did the SRR and Constable Millington meet alone? For how long? What was discussed? What was the resulting input or influence, if any, of the SRR's involvement? Who called the SRR and why?
In terms of the meeting between Constable Millington and Corporal Ingles, I have no knowledge of the content of the conversation, other than Constable Millington's comment in his statement that Corporal Ingles told him that he had the option to sleep on it and not give a statement right away to ensure that he (Constable Millington) recalled all of the details.
Corporal Ingles has commented on the meeting.96 It appears to me from the comments of Corporal Ingles that, in his view, the role of the SRR is to filter information as between the involved member and the investigators. With respect to the role of and interaction between an SRR and an involved member, I see this as a practice fraught with potential pitfalls. The investigators, particularly in the early stages of an investigation, require facts which are not adulterated or influenced. The investigator is at liberty to conduct the interview of the involved member without the SRR potentially having first discussed the facts of the situation with the member. SRR attendance and discussion with the member(s) involved prior to the member being asked to provide a statement with respect to serious incidents could result in filtered information being provided to the investigator. The further danger is the potential for the appearance of interference, or at worst actual interference, with an ongoing investigation.
In light of my recommendation (see page 47) that investigations of police officers involved in incidents of death or serious bodily harm be treated as criminal investigations until they are demonstrated to be otherwise, the role of the SRR should be clarified.
Notwithstanding the potential that the involved member's statement may be influenced, I am concerned that prior to taking a statement from the involved member, the investigator could be influenced by information or a version of events provided by the SRR. To paraphrase an old maxim, an impartial investigation must not only be done, it must be seen to be done. This is particularly true when the police are investigating the police.
In addition to concerns with the presence of the SRR prior to any interview being conducted or statement taken from police witnesses by the investigators, I have concerns with the fact that apparently all of the involved members were together at the sub-detachment at YVR following the death of Mr. Dziekanski to meet with the SRR. Basic investigative practice is for witnesses to be separated to avoid any opportunity for complicity or the appearance of such.
The issue of the duty to account statement has arisen previously and I have recommended the need to address the propriety of the involvement of the SRR. In my decision in the Ian Bush matter,97 my recommendation and the response of November 2, 2007 from the Commissioner of the RCMP were as follows:
Recommendation
The RCMP develop a policy that dictates the requirement, timeliness and use of the duty to account that members are obliged to provide.
Commissioner Elliott responded:
I support this recommendation and will ask the Director, Community, Contract and Aboriginal Policing Services, to ensure that this is done in a timely manner.
To date, it has not been confirmed with the Commission that this recommendation has been implemented.
Finding
The responding RCMP members meeting alone at the YVR sub-detachment office following the death of Mr. Dziekanski was inappropriate.
Finding
An SRR should not have been permitted to meet alone with Constable Millington prior to the IHIT investigator.
Recommendation
If the protocol of SRR attendance is to continue, the RCMP should formalize the role of the SRR to provide clear policy and guidance to ensure that the SRR knows the bounds of his or her involvement and the required protocols with respect to such attendance, and that in all such cases the SRR not meet alone with a subject member in advance of being interviewed by an investigator.
Recommendation
I reiterate my recommendation in the Ian Bush decision (November 2007) that [t]he RCMP develop a policy that dictates the requirement, timeliness and use of the duty to account that members are obliged to provide.
It is apparent to me that the IHIT investigators did not approach the interviews of the involved members or the civilians with a coordinated set of issues to be covered to ensure that the same areas were canvassed with each person. This is not to suggest that the IHIT investigators should have conducted each interview from the same set of questions, but coordination of the nature of questions to be asked of each witness would have been helpful. The resulting statements do not represent what would be considered a coordinated approach.
When IHIT was asked whether this postulation was correct, IHIT responded that:
The IHIT members who conducted statements had full, unfettered access to the entire investigational file. To varying degrees the members resourced information such as the daily log, statement transcripts, video footage, audio recordings and other material that was collected through the course of the investigation.
Verbiage such as "to varying degrees" conveys the image that investigators did not approach the interview process in a coordinated manner and each approached the conduct of interviews as he or she saw fit. My concern, therefore, is that investigators may have worked in isolation of the details obtained by others and that the coordination of information may have caused necessary questions to go unasked. For example, in their statements to IHIT the responding RCMP members were never pressed about the degree of communication among members during the Dziekanski incident, nor were they pressed about the nature of the decision to deploy the CEW, the speed with which it was deployed or other means available to de-escalate or resolve the situation.
Although the RCMP subscribes to major case management practices, a reasonable amount of time is necessary to organize and put in place the tools necessary to manage the file. During the interviews conducted immediately after the incident, I understand that IHIT investigators would be attempting to obtain all of the information available without conducting significant analysis. In the days following the incident, however, investigators would have been able to conduct a cursory analysis at a minimum, to be able to determine what areas required sharper focus and the level of depth of information required.
Recommendation
The RCMP should review its operational policies and procedures to ensure that, particularly in serious cases in which members investigate the actions of other members, processes are available to enable investigator awareness of the nature and depth of detail required during interviews.
The responding RCMP members from whom statements were taken by IHIT investigators did not receive a police caution pursuant to the Canadian Charter of Rights and Freedoms at the time their statements were taken because investigators felt there was no evidence that a criminal offence had been committed. At the time the statements were taken, IHIT investigators knew that Constable Millington had discharged the CEW, they knew that there had been an altercation involving the members and Mr. Dziekanski and they knew that Mr. Dziekanski was deceased. They did not, however, have evidence that any of the responding members had committed a criminal offence.
According to the RCMP Learning Module on Witness Statements, the threshold for taking a cautioned statement is a (reasonable) suspicion that a criminal offence may have been committed.98 IHIT investigators did not have such a belief when they took the statements from the responding members. Investigators indicated in the IHIT Report to Crown Counsel that they were prepared to stop any given interview and issue the necessary caution had any evidence of a criminal offence come to light.
The Report to Crown Counsel as compiled by the IHIT investigation stated:
Investigators made a conscious decision to take un- warned statement [sic] versus warned statements. Based upon the totality of the evidence available to investigators at the time, no evidence existed indicating criminal behaviour on the part of the officers. Investigators were prepared to stop interviews and warn the officers at any time should their information suggest criminal code breaches.
With respect to the first statements taken by IHIT investigators from the responding members shortly after the death of Mr. Dziekanski, I do not disagree with the decision to take non-cautioned witness statements.
Beginning at 7:23 a.m. on October 14, 2007, an IHIT briefing took place at the Richmond Detachment and by that time, a number of IHIT investigators had viewed the Pritchard video. After viewing the Pritchard video and realizing that the statements of the responding members did not align with the video evidence, it would have been prudent for IHIT investigators to have asked themselves whether the video presented a reasonable suspicion that a criminal offence had taken place before taking subsequent statements from the responding members.99 This would have caused them to reconsider and document whether to take cautioned statements from the responding members and whether or not to show the Pritchard video to the involved members prior to taking further statements.
Evidence during the Braidwood Inquiry supports the assumption that Superintendent Rideout, the Officer in Charge of IHIT, did consider this action and decided against it. In an e-mail dated November 5, 2007 from Superintendent Rideout to his superior, Chief Superintendent Dale McGowan, Superintendent Rideout stated:
...we will not be releasing the video to the involved member. We feel it would be inappropriate in an impartial investigation.
Superintendent Rideout explained in his Braidwood Inquiry testimony that although he wrote member, he actually meant that the video would not be released to the four responding members.
The video, vis-à-vis the involved members, appears not to have been considered by IHIT investigators in the context of an investigative tool. In his evidence during the Braidwood Inquiry, Superintendent Rideout indicated that he had considered the effect on the involved members of the video being publicly released, but he did not comment on the reason for not reviewing the video with the involved members. He said:
... the thinking was that the release of that video and their viewing of it would be traumatic for them, ... and there was some concern should that be released, my position was that was not the role of the IHIT investigation and that we should not participate in that.
Superintendent Rideout reiterated those comments during his interview by the Commission when he was asked why the Pritchard video was not put to the responding members to allow them to comment on the differences between their versions of events and the scenes depicted in the video. Notably, during his testimony at the Braidwood Inquiry on September 22, 2009, Superintendent Rideout was asked about an e-mail which on October 23, 2007 he sent to Inspector Bill Fordy (a member of IHIT) in which he referred to the fact that the Regional Coroner had concerns regarding discrepancies between the members statemnets [sic] and the seized video at YVR. In that same e-mail Superintendent Rideout says, Perhaps you could review the statements. We will likely have to re-interview members to address his questions. Superintendent Rideout testified during the Braidwood Inquiry that he intended this message as a "head's up" or a notification to Inspector Fordy. Despite this comment, these discrepancies were not addressed with the members involved in this incident. I am left to surmise, therefore, that the use of the video as an investigative tool was not considered by IHIT.
Finding
If for no other reason than to be fair to the responding members and give them an opportunity to address the significant and readily apparent discrepancies between their versions of events and the video, it would have been appropriate to provide the responding members with an opportunity to view the Pritchard video prior to taking further statements from them.
I have reviewed the notes taken by each of the responding members with respect to the interaction with and death of Mr. Dziekanski. The quality, completeness and content of these notes is well below the standard expected of police officers. Three of the four responding members deal with the entire incident in approximately four pages of their relatively small (pocket sized) police notebooks. The fourth member recorded the entire incident in approximately two pages. Each of these records also includes the names and contact information of potential witnesses, meaning that the substantive description with respect to the interaction with Mr. Dziekanski is even more truncated than the number of pages indicated.
The result is that detail with respect to the observations of the members, their perceptions of the scene and Mr. Dziekanski's actions as well as their own responses and the rationale for those actions is sparse. At best, the notes provide a very high level overview of the incident. I note that during his testimony in the Braidwood Inquiry, Staff Sergeant Douglas Wright100 indicated that he urged Corporal Benjamin Robinson to take "excellent notes" about the incident, but that ultimately those notes were not to his standard. Notably, Staff Sergeant Wright acknowledged that it is often the case that due to the fact that a member's notes may be subject to "examination and/or production and/or a search warrant to address what it is that he did at the time," a member will put "very, very short, cryptic notes" and that the documentation on the file itself would be where additional information would be held.
RCMP policy advises members that:
2. General
2. 1. The member's notebook is a fundamental investigative tool. It is essential that notebooks be properly compiled, complete and accurate in order to support investigations, corroborate evidence and increase the credibility of a member's testimony in court. Properly recorded entries (notes) may also prove to be invaluable in substantiating information years after an investigation.
2. 2. You may use notebook entries to refresh your memory for court if the notes were made at or near the time of the occurrence.101
Some or all of the responding members may take the view that because they were going to be asked to provide verbal statements concerning the YVR incident, the need for detailed written notes was lessened. I do not accept this position. No matter the occurrence, RCMP members are aware that they will be required to document the matter with internal written reports. The requirement to document police actions does not replace or diminish the need to document the matter in their own notebooks. As noted elsewhere in this report in the section titled Statements from RCMP Members, in order for a member to invoke the protections of section 25 and other relevant sections of the Criminal Code, he or she must provide sufficient information to demonstrate that at the relevant time he or she was a peace officer engaged in the lawful execution of his or her duty and using only as much force as was necessary for that purpose.102
The issue of sub-standard note taking has arisen in previous Commission decisions.103 To date, the Commission has seen no discernable improvement in note taking.
To be clear, I make a distinction between note taking in the field and the completion of the various reporting forms to be completed by RCMP members (such as Occurrence Reports, Continuation Reports, CEW Usage Report or the Subject Behaviour/Officer Response Report [which will apparently be implemented in 2010]). Although RCMP policy requires in some circumstances that computer-based reporting be completed prior to the end of shift, absent adequate field note taking, the reliability of the data used for inclusion in the mandatory reporting documents must be considered suspect. Furthermore, the Commission has reviewed many cases in which the electronic reporting forms are not completed in a timely manner. In such cases, absent comprehensive, contemporaneous notes, the reliability of the written record will be seriously diminished.
I see as problematic the potential that in some cases members opt to rely on memory to provide reporting, as opposed to ensuring that appropriate and comprehensive field notes are taken in the first instance.
Finding
The responding members did not keep adequate notes of the incident involving Mr. Dziekanski.
Recommendation
In light of the continuing nature of this issue, the RCMP should take steps to ensure that members are aware of the importance of note taking, and that supervisors should be encouraged to regularly review the notes taken by their subordinates to ensure the quality of such documentation.
In addition to the meeting with the SRR, a critical incident stress debriefing took place on October 27, 2007. Present were the four members as well as others trained in helping people deal with the aftermath of a traumatic event. Other than Constable Bentley, who gave his final statement on November 22, 2007, the other members had all provided statements prior to this debriefing taking place. I have reviewed Constable Bentley's post debriefing statement and note that it does not differ in substance from the accounts provided by the other members, nor does it differ from his own previous statements.
I understand the need to provide such debriefing sessions to assist those involved in dealing with traumatic events. As such, for the health and well-being of those involved these sessions are necessary, provided they do not in any way interfere with the need to segregate evidence or contribute to the tainting of future evidence.
As noted in the section of this report discussing the Independent Observer Program, the Independent Observer found that no IHIT investigators had any association with any of the responding members.
He noted that the girlfriend of an IHIT investigator was acquainted with the girlfriend of Constable Millington. As a result, the IHIT team commander unilaterally assigned the investigator to the role of file coordinator, with the result that the investigator did not participate in conducting the investigation itself. This action was taken with no prompting from the Independent Observer.
Further, the Independent Observer reported that the IHIT team commander was accredited (in Major Case Management) and that each of the investigators was assigned full-time to the IHIT team, meaning that each worked solely on the investigation of homicide cases. The IHIT members, therefore, are highly trained and possess the skill sets necessary to conduct serious investigations.
The incident involving Mr. Dziekanski occurred at approximately 1:30 a.m. on Sunday, October 14, 2007. IHIT was advised of the death of Mr. Dziekanski at 2:28 a.m. and arrived at YVR to begin the investigation at 3:45 a.m.
The Independent Observer noted no signs of bias or partiality on the part of the IHIT investigators. On October 29, 2007, the Independent Observer received a CD containing witness statements taken to that date. Upon review of those statements, he noted no concerns with respect to impartiality or the asking of leading questions.
Having had the opportunity to review the IHIT investigation file, I agree with the assessment of the Independent Observer. I also note the following:
- IHIT responded with an appropriate number of members to conduct the investigation;
- RCMP Forensic Identification Technicians were called to the scene after the death of Mr. Dziekanski. These technicians processed the scene for evidence and chronicled the incident appropriately with photographs;
- IHIT investigators began to take statements from the responding members and some of the civilians very shortly after arriving at the incident.
I have no evidence to suggest that IHIT investigators were less than professional. No evidence suggests that the responding RCMP members involved in the incident were treated inappropriately.
Major Case Certification
When investigating incidents are deemed to be serious in nature, such as homicides, most Canadian police agencies subscribe to a series of investigative protocols and processes known as Major Case Management.
At the time of the investigation of the death of Mr. Dziekanski, Superintendent Wayne Rideout, a member of the RCMP and the OIC of IHIT, was certified as a Team Commander in Major Case Management. Staff Sergeant David Attew, the initial commander of the IHIT team conducting the investigation was also Major Case certified. According to Superintendent Rideout, a number of the IHIT investigators on the team had taken the Major Case Investigators Course, while others, although experienced investigators, were newer on the IHIT team. In total, nine IHIT members were present at the YVR scene.
I note that Superintendent Rideout, although he was the OIC of IHIT and therefore had overall responsibility for the IHIT investigation teams, was not the original commander of the IHIT team assigned to investigate Mr. Dziekanski's death. Approximately one month into the investigation, however, he assumed those duties, presumably because of the public interest generated into the death.
OPP Review
On November 19, 2007 Chief Superintendent Richard Bent, Deputy Criminal Operations Officer of RCMP "E" Division requested that the Ontario Provincial Police (OPP) conduct a file review of the IHIT investigation. Specifically, Chief Superintendent Bent requested that the OPP examine the IHIT investigation to ensure that it was thorough, professional and unbiased. The OPP review found that overall the IHIT investigation was conducted in an impartial and unbiased manner and that the management of the investigation was conducted according to established standards. I have not relied on the OPP report in my investigation.
Finding
No bias or partiality toward the involved RCMP members was present in the IHIT investigation of the death of Mr. Dziekanski.
Finally, I wish to address an issue, the importance of which is exemplified by the varying witness accounts of this incident. Undoubtedly, public interest in the events leading up to Mr. Dziekanski's death was increased because of the video footage showing the events unfold in real time. The proliferation of digital technology will afford members of the public an ever-increasing ability to capture all manner of events as they unfold. In my review I have relied heavily upon the images recorded by Mr. Pritchard, as the best evidence of the critical period of time, to assess both the interaction between the police and Mr. Dziekanski as well as the accuracy of the recollections of the various witnesses who later provided their accounts of the incident.
Policing agencies throughout the world are experimenting with video technology to assist them in their policing activities. In July and August of this year the Victoria Police Department conducted a pilot project using body-worn video devices (head cams) to record police interactions with the public. Anecdotal accounts of this project speak to its success. In the United Kingdom a trial project using these devices was commenced in 2006. The number of agencies in the United Kingdom integrating this technology continues to grow.
In the circumstances of this case, there would have been a clear benefit to video footage capturing the events from the members' perspectives. Although the Commission had the benefit of a non-police generated video, there is no doubt that a system that would allow all "to see and hear the event unfold through the eyes and ears of the officer at the scene,"104 would be the best of all possible options. In addition to providing the best evidence, from an examination of early United Kingdom experiences, it may have a crime reduction effect, improve arrest and conviction rates, reduce overall police workload and be a useful tool to provide members with feedback as to their interaction with the public thereby improving the civility of the police.
While these benefits must be balanced against privacy rights, costs and increased infrastructure demands, I believe that the time has arrived to give these devices additional consideration within the Canadian policing context.
Having considered the complaint, I hereby submit my Public Interest Investigation Report in accordance with subsection 45.43(3) of the RCMP Act.
_______________________________
Paul E. Kennedy
Chair
92 Criminal Code, section 25 ( R.S., 1985, c. C-46).
93 Commission File No.: PC-2006-1532, November 27, 2007.
94 The RCMP is not unionized. SRRs carry out a function akin to a union representative.
95 See Appendix Q – Involvement of Staff Relations Representative.
96 Ibid.
97 Commission File No.: PC-2006-1532, November 27, 2007.
98 See WITNESS STATEMENTS – INTRODUCTION TO WARNED / CAUTIONED STATEMENTS – Step 3: Police Warning.
99 Sergeant Pierre Lemaitre, RCMP "E" Division Media Liaison, said in evidence at the Braidwood Inquiry that he saw the Pritchard video on the morning of October 14, 2007. Sergeant Lemaitre (and other witnesses) said that IHIT investigators also viewed the video.
100 In October of 2007, Staff Sergeant Wright was the Staff Sergeant in charge of the Vancouver International Airport sub-detachment of the Richmond RCMP.
101 See RCMP Policy at Appendix V.
102 Criminal Code, section 25 (R.S., 1985, c. C-46).
103 As examples, see Kingclear, CPC File PC-5710-200401, October 10, 2007 and Lasser, CPC File PC-2008-1192, March 29, 2009.
104 Guidance for the Police Use of Body-Worn Video Devices, Home Office (Police and Crime Standards Directorate), July 2007, at p. 5.