RCMP Commissioner's Notice - Robert Dziekanski

December 15, 2010

Mr. Ian McPhail, Q.C.
Interim Chair
Commission for Public Complaints
Against the RCMP
P.O. Box 1722, Station "B" Ottawa, Ontario KIP OB3

Dear Mr. McPhail:

I acknowledge receipt of the Commission's October 15, 2009 Report Following a Public Interest Investigation into a Chair-Initiated Complaint Respecting the Death in RCMP Custody of Mr. Robert Dziekanski, file reference CPC-2007-2305 and CPC-2007-2344. I regret the length of time it has taken to respond. As discussed with your predecessor, we believed that prior to responding to the CPC report, the RCMP should have an opportunity to also receive and review the reports of the Braidwood Inquiry.

We have now completed our review of this matter, including the findings and recommendations set out in the CPC' s report.

As I acknowledged publicly following the release of the Braidwood Commission's second report in June 2010, the RCMP failed at many levels, and the events that took place at the Vancouver International Airport should have unfolded differently. The RCMP has learned from this tragic incident and has made significant changes to our policies, training and reporting requirements relative to Conducted Energy Weapons (CEWs). A number of these changes address recommendations outlined in the CPC's report.

I agree with the findings that the conduct of Constables Kwesi Millington, Gerry Rundel and Bill Bentley, as well as Corporal Benjamin Robinson, fell short of that expected of members of the RCMP and that they did not adequately attempt to de-escalate the situation, nor did they approach the situation with a coordinated and measured response. In particular, Corporal Robinson should have provided direction to the other three members in developing a coordinated approach and communicating effectively as the events unfolded. As indicated in the report, Corporal Robinson's failure to do so negatively manifested itself throughout the interaction with Mr. Dziekanski.

With respect to Constable Millington's initial deployment of the CEW, I agree with the finding that it was premature and that Constable Millington should have issued a warning as provided for in the applicable RCMP policy in effect at that time. I conclude that the diminished ability to communicate with Mr. Dziekanski because he could not speak English did not sufficiently justify Constable Millington's failure to attempt to draw to Mr. Dziekanski's attention the fact that the CEW was pointed at him. I agree with the comment at page twelve of the report that such an attempt might have caused the situation to de-escalate. Additionally, given that the members engaged in a tactical re-positioning once Mr. Dziekanski picked up the stapler from the counter, I agree with the analysis that time was available to attempt other means of de-escalation, such as continuing to use hand gestures.

With respect to Constable Millington's subsequent cyclings of the CEW, I agree with the findings that he did not know whether they were necessary to control Mr. Dziekanski and that he did not make a significant effort to determine the effect the CEW had on Mr. Dziekanski.

With respect to the members' handling of the medical emergency when Mr. Dziekanski was in distress, I agree with the finding that Corporal Robinson did not adequately monitor Mr. Dziekanski's breathing and heart rate. As pointed out in the report, Corporal Robinson and the other members should have provided first aid and actively monitored Mr. Dziekanski until the arrival of medical personnel. Their decision to cede this responsibility to Mr. Trevor Enchelmaier, a supervisor of a private security firm at the Vancouver International Airport, was inappropriate. I also agree with the finding that the members should have removed the handcuffs from Mr. Dziekanski when they recognized that he was unconscious and an immediate threat was not perceived or, at a minimum, upon the initial request of the attending medical personnel.

I disagree with the finding that the use of force expert engaged by the Integrated Homicide Investigation Team was not provided with adequate direction in terms of the question to be considered, the scope of his work or the terms of reference he was to consider. As the report indicates, Sergeant Brad Fawcett stipulated in his report that he is qualified in assessing the adequacy and appropriateness of the force used by police. Additionally, Sergeant Fawcett assessed the actions of the responding members and specified in his report he canvassed the witness statements and reviewed the video associated with the incident.

I agree with the findings that the members failed to keep adequate notes of the incident involving Mr. Dziekanski and there are discrepancies in the detail and accuracy ofthe members' versions of events when compared to the video evidence ("the Pritchard video"). Although it was not intentional, and was perhaps at the direction of others, I also agree that is was not appropriate for the members to meet alone at the Vancouver International Airport sub detachment office following the death of Mr. Dziekanski. Furthermore, I agree, if for no other reason than to be fair to the members and give them an opportunity to address the significant discrepancies between their versions of events and the video, it would have been appropriate to provide them with an opportunity to view the Pritchard video prior to taking further statements from them.

Please note that I agree with all other findings not specifically mentioned above.

The RCMP's policy on the usage of CEWs was last revised in April 2010, and it now limits the use of CEWs to situations where a subject is causing bodily harm, or when it is reasonably believed the subject will cause bodily harm imminently. It also warns members that, as with any use of force intervention, use of the CEW entails risk and multiple deployment or continuous cycling of the CEW may be hazardous to a person.

To enhance our accountability for CEW usage, the RCMP has strengthened its reporting requirements and processes to capture more details on all use of force incidents and to help members articulate in greater detail the circumstances of specific incidents where force was used. The RCMP is now publicly reporting all CEW usage quarterly and annually. The RCMP has also had its CEWs tested independently and has implemented an ongoing testing regime.

The RCMP also updated its Incident Management Intervention Model training to put an increased emphasis on de-escalation, reinforcing that the goal of any intervention is to resolve the incident through officer presence and communication whenever possible and if the situational factors require that force be used, that members must only use as much force as necessary to resolve the situation. We have committed to reviewing research and developments relating to CEW s on an ongoing basis and working with the CPC, other police services and medical experts with the aim of ensuring our policies and training remain appropriate and up-to-date. We have already acted on this commitment by recently hosting subject matter experts from other police agencies, the medical community, the Canadian Police Research Centre and from across the RCMP, to rewrite and update the conducted energy weapon user course. This approach proved to be very successful and will result in the most current and up-to-date training on the conducted energy weapon being provided to our members.

Additionally, the RCMP has implemented a new Responsibility to Report Policy that outlines a measured and balanced approached to having members report promptly and diligently when describing their actions and the circumstances giving rise to their actions during a police event.

Other steps have been taken that address issues brought to light in the examination of the RCMP's actions in this matter. These include the updating of our note taking policy and the development and implementation of the RCMP's External Investigation or Review Policy.

A fundamental element of any professional police investigation are the notes taken by investigators. Note taking is the direct responsibility of every RCMP member and official notebooks are issued to members for the purpose of recording important information, details, and facts coming to their attention in the course of their duties. From early days at Depot, cadets learn that notebooks and contents are essential and that notebook entries refresh memory, bring credibility to testimony and are invaluable in substantiating information years after the original entry was made. Cadets are also taught to use their notebook as the primary source of information to create the rest of their operational file. Instructors review cadet notebooks throughout training to reinforce the importance of note taking, to ensure note taking is in the proper format and suitable content is being entered.

In this particular case, you correctly raised the concern that the involved members failed to keep adequate notes. Currently, our out-dated notebook policy is being rewritten to require increased supervisory oversight/monitoring of members' notes to verify quality and compliance with policy and to address any note taking deficiencies. Until policy changes are completed, Commanding Officers and Criminal Operations Officers have been engaged to address the concerns of inadequate note taking. They have agreed to implement interim divisional measures to strengthen note taking practices pending policy amendments being published.

I note the report included comments on the potential for the RCMP to initiate internal investigations into the actions of the responding members and in relation to our media relations officers. The report indicates the RCMP did not provide the Commission information pertaining to whether such investigations were considered following the death of Mr. Dziekanski. While not specifically addressed as a finding in the report, I believe this is an important issue worthy of a response.

Consideration was, in fact, given to the initiation of Code of Conduct investigations, but no such investigations were initiated. The responsible decision makers were of the view that, based on the information available to them at the time, the threshold for initiating such investigations had not been met.

The RCMP subsequently concluded that clarification was required with respect to this threshold. A Directive from the Senior Deputy Commissioner, issued on October 15,2010, confirms that only the appearance ofa contravention of the Code of Conduct is required and once there is an appearance of a contravention, an investigation must be initiated.

Furthermore, the RCMP has established and staffed the senior executive position of Professional Integrity Officer. It is now mandatory for the Professional Integrity Officer to be notified of all Code of Conduct investigations whenever a serious injury of an individual involves an RCMP member or where it appears that an RCMP member may have contravened, or has been charged under, a provision of the Criminal Code or other enactment and the matter is of a serious or sensitive nature. The Professional Integrity Officer's role is to inform and advise the Commissioner's Office and the Senior Executive of the RCMP with respect to notable issues in employee behavior, as well as to assist Divisions in articulating whether or not a Code of Conduct will be initiated.

The RCMP has taken formal steps to identify areas where each of the four members who interacted directly with Mr. Dziekanski on October 14, 2007, fell short in their performance and outlining requirements for them to address those deficiencies.

The RCMP is committed to doing all we can to learn from the tragic death of Mr. Dziekanski and to continue to work to achieve our vision for change for the RCMP to be an adaptive, accountable, trusted organization offitlly engaged employees demonstrating outstanding leadership and providing world-class police services.

Sincerely,

William J.S. Elliott, C.O.M., Q.C.