Chair's Final Report After Commissioner's Notice – In-custody death of Mr. Robert Dziekanski, October 14, 2007, involving the use of a conducted energy weapon at the Vancouver International Airport

RCMP Act Subsection 45.46(3)

February 10, 2011

File Nos.: PC-2007-2305
PC 2007-2344

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The Complaint

Mr. Robert Dziekanski died while in the custody of members of the Royal Canadian Mounted Police (RCMP) in the early morning hours of October 14, 2007, in the international arrivals area of the Vancouver International Airport (YVR). The circumstances leading to the death of Mr. Dziekanski have resulted in great pain and sorrow for his family, and in great public interest and concern.

The Commission for Public Complaints Against the RCMP (CPC or Commission) first became engaged in the YVR incident on October 15, 2007, when it deployed an independent observer to the RCMP's criminal investigation into events surrounding the death of Mr. Dziekanski. On November 8, 2007, the former Chair of the Commission initiated a complaint to delve into the two aspects of the incident which are within the jurisdiction of the Commission, those being the appropriateness of the response by the RCMP to the complaints concerning Mr. Dziekanski's behaviour at YVR, and the police investigation of the death of Mr. Dziekanski.

A third element to the investigation was later added to include a complaint by the British Columbia Civil Liberties Association (BCCLA) pertaining to the "lack of accuracy of information provided to the media and the failure of the RCMP to return the video taken by Mr. Pritchard in a timely manner."

The Commission's Public Interest Investigation and Interim Report

The facts giving rise to the incident are well known to the public. After arriving in Vancouver from Poland on October 13, 2007, Mr. Dziekanski remained inside the international arrivals secure area of YVR for many hours. In the early hours of October 14, Mr. Dziekanski began to act irrationally and damaged a computer and a chair, both of which were the property of YVR. A series of 911 complaints of a man acting erratically in the international arrivals area of the airport caused the RCMP to respond. After a very brief encounter, a conducted energy weapon (CEW) was deployed against Mr. Dziekanski and he was taken into custody. He died shortly thereafter.

The formal parameters of the investigation were as follows:

  • 1. Whether the RCMP officers involved in the events of October 14, 2007, from the moment of initial contact until Mr. Dziekanski's subsequent death, complied with all appropriate policies, procedures, guidelines and statutory requirements for the arrest and treatment of persons taken into custody, including any RCMP directives or guidance related to the handling of persons who cannot communicate in either of Canada's official languages, and whether such policies, procedures and guidelines are adequate.
  • 2. Whether the RCMP officers involved in the criminal investigation of the members involved in the events of October 14, 2007, complied with the RCMP policies, procedures, guidelines and statutory requirements for the conduct of such an investigation and whether such policies, procedures and guidelines are adequate and, further, whether such investigation was carried out in an adequate and timely fashion.
  • 3a. On November 13, 2007, the British Columbia Civil Liberties Association (BCCLA) initiated a public complaint pursuant to Part VII of the RCMP Act, pertaining to the lack of accuracy of information provided to the media and the failure of the RCMP to return the video taken by Mr. Pritchard in a timely manner. These actions were characterized by the BCCLA as violations of RCMP policy and professional misconduct on the part of the involved RCMP members.
  • 3b. The BCCLA was not satisfied with the RCMP's subsequent investigation into its complaint. In a letter received from the BCCLA dated March 19, 2009, subsequent to the Chair's decision to also address issues involving RCMP media releases, the Commission was requested to review the RCMP investigation into the BCCLA complaint pertaining to RCMP media releases. The Chair acceded to this request and the review has been incorporated into the Interim Report.

The Commission issued its Public Interest Investigation and Interim Report into this matter to the RCMP Commissioner and the Minister of Public Safety on October 15, 2009, and publicly released its Report Following a Public Interest Investigation on December 8, 2009, in which it made 23 findings and 16 recommendations for change.

Overall, the Commission found that the conduct of the responding members fell short of that expected of members of the RCMP. The members demonstrated no meaningful attempt to de-escalate the situation, nor did they approach the situation with a measured, coordinated and appropriate response. The failure of the senior member to take control of the scene, communicate with and direct the more junior and inexperienced members negatively manifested itself throughout the interaction with Mr. Dziekanski.

The Commission did not accept the version of events as presented by the four responding RCMP members. The statements provided by the members are sparse in terms of detail of the events and the thought processes of the members as events unfolded. When tracked against the witness video, the recollections of the members fall short of a credible statement of the events as they actually unfolded. The fact that the members met together prior to providing statements caused the Commission to further question their versions of events.

An issue inextricably linked to the incident is the use of a conducted energy weapon (CEW), also known as a TASER®, by an RCMP member during the arrest of Mr. Dziekanski. The CEW is a prohibited firearm pursuant to the regulations under the Criminal Code of Canada.Footnote 1. Debate pertaining to the overall appropriateness of the use of CEWs by police had been ongoing for some time prior to the YVR incident (and has been previously commented on by the Commission as indicated below), but this particular use of a CEW focused considerable attention and scrutiny on appropriate CEW usage and the nature of the CEW as a weapon.

Overall, while the Commission found that the Integrated Homicide Investigation Team (IHIT) investigation was unbiased, it did find a number of issues involved in the IHIT investigative processes. The Commission also found issues with the RCMP's media releases related to this incident. It is essential that the RCMP develop a media and communications strategy specifically for in-custody death 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.

The RCMP Commissioner's Notice

Pursuant to subsection 45.46(2) of the RCMP Act, the RCMP Commissioner is required to provide written notification of any further action that has been or will be taken in light of the findings and recommendations contained in the Interim Report.

On December 20, 2010, the CPC received the RCMP Commissioner's Notice. The RCMP Commissioner accepted all but one of the Commission's findings.

As noted above, the Commission made 16 recommendations to the RCMP Commissioner in relation to ways in which policies and procedures could be improved, in part to prevent such tragedies in the future. In response to the Commission's recommendations, it should be noted that the RCMP Commissioner set forth a variety of positive steps that have been taken towards addressing them. In particular, the RCMP has revised its policy on the usage of CEWs and the reporting and tracking requirements flowing therefrom. The RCMP is also increasingly emphasizing de-escalation in its member training.

The RCMP has developed and implemented new policies with respect to members' responsibility to report and detail their actions following a police event, taking into account the public desire for thorough and forthright explanations of the reasons for which a police officer may have chosen a particular course of action. In addition, the RCMP has developed and implemented an external investigation policy which requires that serious incidents be investigated by other agencies. Notably, the Commissioner also addressed deficiencies in member note taking and emphasized the importance of thorough and reliable contemporaneous notes.

The RCMP Commissioner's response was silent with respect to some of the Commission's recommendations. The Commission followed up with the RCMP to determine what action, if any, had been or would be taken to address those recommendations. The RCMP provided a formal response to the Commission in that respect on January 19, 2011. The RCMP indicated that existing policy and procedures are in place to address issues relating to the seizure of audio and video recordings, as well as familiarization of members with detachment medical facilities and resources.

The RCMP also indicated that existing policy and procedures, as well as its national communications strategy, were responsive to the Commission's recommendations regarding police interactions with the media. The Commission recognizes the strides taken in this area. Nonetheless, as indicated in the December 2010 Final Report of the RCMP Reform Implementation Council, concerns continue to exist with respect to the RCMP's capacity for strategic communications. The Commission hopes that progress in this area continues.

The RCMP also advised that its current training program relating to positional asphyxia had been reviewed, and guidance regarding restraint devices and methods had been assessed. Finally, with respect to the issue of the attendance of staff relations representatives (SRRs), the RCMP highlighted its recently implemented policy regarding the responsibility of members to report, noted above, which indicates that members may be required to provide preliminary reports prior to contacting and/or meeting with their SRRs. The Commission notes with approval the positive steps taken by the RCMP towards addressing the concerns raised both by the Commission and by the public.

The one finding with which the Commissioner disagreed was that the use of force expert used by the IHIT 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. The Commissioner referenced the use of force expert's qualifications and the evidence available to him. These are not issues relevant to the Commission's finding, which is reiterated below.

The Commission's Findings and Recommendations

As a result of the Commission's investigation, it made a number of findings and recommendations that it believed would assist the RCMP in enacting/reviewing policies and shape training to ensure that a tragic situation such as this is not repeated. I reiterate the Commission's findings and recommendations.

Findings

  1. Finding
    The RCMP members involved in the arrest of Mr. Dziekanski were in the lawful execution of their respective duties and were acting under appropriate legal authority.
  2. Finding
    In light of the information possessed by the RCMP members responding, the decision to approach Mr. Dziekanski to deal with the complaints was not unreasonable. At any point a member of the travelling public or an employee at YVR could have happened upon Mr. Dziekanski. As evidenced by the multiple calls to 911, it was incumbent upon the RCMP members to ensure a safe environment for the public and employees using the airport facility and to halt the disturbance being caused by Mr. Dziekanski.
  3. Finding
    To ensure a coordinated approach to Mr. Dziekanski, Corporal Robinson should have taken control and directed the other responding members to ensure that each was aware of the intended response and to ensure that each communicated with the others as the events unfolded.
  4. Finding
    Prior to deploying the CEW, Constable Millington should have issued the required warning/challenge to Mr. Dziekanski as required by RCMP policy, notwithstanding the fact that Mr. Dziekanski appeared not to understand the English language.
  5. Finding
    Because no significant attempts were made by the RCMP members present to communicate with Mr. Dziekanski, to obtain clarification of information pertaining to Mr. Dziekanski's situation, or to communicate among themselves, the deployment of the CEW by Constable Millington was premature and was not appropriate in the circumstances.
  6. Finding
    Constable Millington cycled the CEW multiple times against Mr. Dziekanski when those subsequent cycles were not known by him to be necessary for the control of Mr. Dziekanski.
  7. Finding
    The multiple cycles of the CEW against Mr. Dziekanski when no significant effort was made to determine the effect of the CEW on Mr. Dziekanski was an inappropriate use of the CEW.
  8. Finding
    Corporal Robinson did not adequately monitor Mr. Dziekanski's breathing and heart rate.
  9. Finding
    Because Corporal Robinson did not know the qualifications of Mr. Enchelmaier, he should not have allowed him to provide first aid or actively monitor Mr. Dziekanski's condition. That task should have been performed by the RCMP members themselves. Corporal Robinson, therefore, failed to provide adequate medical care to Mr. Dziekanski.
  10. Finding
    The handcuffs should have been removed from Mr. Dziekanski when the members recognized that he was unconscious and in distress and no immediate threat to the members was perceived. At a minimum, they should have been removed immediately upon the initial request of medical personnel.
  11. Finding
    The failure of Corporal Robinson to take control of the scene, communicate with and direct the more junior and inexperienced members negatively manifested itself throughout the interaction with Mr. Dziekanski.
  12. Finding
    I do not accept as accurate any of the versions of events as presented by the involved members because I find considerable and significant discrepancies in the detail and accuracy of the recollections of the members when compared against the otherwise uncontroverted video evidence. In their statements, the members indicated in responses to numerous questions that they could not recall the detail of the events as they unfolded. The fact that the members met together and with the SRR prior to providing statements causes me to question further their versions of events.
  13. Finding
    The conduct of the responding members fell short of that expected of members of the RCMP by the Canadian public and by RCMP policies. The members demonstrated no meaningful attempt to de-escalate the situation, nor did they approach the situation with a measured, coordinated and appropriate response.
  14. Finding
    The members failed to adequately comply with their training on the CAPRAFootnote 2 model and the Incident Management/Intervention Model (IM/IM) to assess the behaviour of Mr. Dziekanski, and therefore the risk posed by him. As a result, the level of intervention went beyond what was necessary and acceptable, contrary to the RCMP's IM/IM and CAPRA model.
  15. Finding
    Because the RCMP positions the CEW as an intermediate weapon and trains its members that it is appropriate to use the CEW in response to low levels of threat because it is a relatively less harmful means of controlling a subject, the responding members did not fully appreciate the nature of the CEW as a weapon and it was resorted to too early.
  16. 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.
  17. Finding
    Corporal Robinson, as an involved member, should not have been allowed 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.
  18. Finding
    The responding RCMP members meeting alone at the YVR sub-detachment office following the death of Mr. Dziekanski was inappropriate.
  19. Finding
    An SRR should not have been permitted to meet alone with Constable Millington prior to the IHIT investigator.
  20. 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.
  21. Finding
    The responding members did not keep adequate notes of the incident involving Mr. Dziekanski.
  22. Finding
    No bias or partiality toward the involved RCMP members was present in the IHIT investigation of the death of Mr. Dziekanski.
  23. 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.

Recommendations

  1. 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.
  2. Recommendation
    The RCMP should continue to be involved in and stay abreast of current independent research on the use and effects of the CEW.
  3. 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.
  4. 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.
  5. Recommendation
    The RCMP should consider designing and implementing training for its members in techniques to communicate with persons who cannot meaningfully communicate with them.
  6. Recommendation
    The RCMP should:
    1. 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
    2. 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.
  7. Recommendation
    RCMP detachment familiarization procedures should include a detailed review of available medical facilities and equipment.
  8. 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.
  9. 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.
  10. 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.
  11. Recommendation
    I reiterate my recommendation in the Ian Bush decision (November 2007) that: The RCMP develop a policy that dictates the requirement, timeliness and use of the duty to account that members are obliged to provide.
  12. 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.
  13. Recommendation
    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.
  14. 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.
  15. 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.
  16. 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.

Pursuant to subsection 45.46(3) of the RCMP Act, the Commission's mandate in this matter is ended.

____________________________
Ian McPhail, Q.C.
Interim Chair

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