Thomas R. Braidwood, QC, Commissions of Inquiry
A. EXECUTIVE SUMMARY
October 2007, at the Vancouver International Airport, an officer of
the Royal Canadian Mounted Police (“RCMP”) used a
conducted energy weapon against
The Commission of Inquiry
This second inquiry report deals with the death of Mr. Dziekanski. My Terms of Reference (set out in Appendix A) were:
The Commission convened 61 days of evidentiary hearings at which 91 witnesses testified under oath or affirmation, followed by five days of closing oral submissions. Official participant status was granted to 16 individuals and organizations, all of whom were represented by counsel. Three of the 91 witnesses were senior employees of the Canada Border Services Agency and the Vancouver Airport Authority, who explained their policies, practices, and procedures respecting the handling of, and services provided to, arriving international passengers, especially those who do not speak English, and what changes have been made since October 2007.
Mr. Dziekanski’s trip to Canada
Mr. Dziekanski was born in Poland in 1967, and lived his entire life there. After his mother immigrated to Canada and settled in Kamloops, BC, he made the decision in late 2007 to do so as well. He spoke only Polish, had never flown before and, in the days preceding his departure, grew increasingly anxious. His trip was rescheduled once, and on the night before his departure, he was panicky. Friends described him as shaking, vomiting, and clinging to a heat radiator in the apartment. However, once he began the drive to the airport he settled down. He flew to Frankfurt and then Vancouver, and his behaviour on both flights was uneventful.
Mr. Dziekanski’s arrival in Vancouver and clearance to enter Canada
His flight arrived at Vancouver International Airport at about 3:15 p.m. on October 13, 2007, although he would not clear Canadian Immigration and exit the secure Customs Hall until 12:40 a.m. the next morning. As he approached the Primary Inspection Line, he was sweating profusely and had a disturbed look on his face. With some assistance from a Border Services officer, he was able to complete his Customs Declaration Card, and he proceeded through the Primary Inspection Line at 4:09 p.m. Because he was immigrating to Canada, he was required to proceed to Secondary Customs and Secondary Immigration. Because of the language barrier this was not explained to him, but the officer may have pointed behind her where he was to go.
For the next five-and-a-quarter hours, Mr. Dziekanski disappeared within the Customs Hall area. His mother, who drove from Kamloops with a friend to meet him, arrived at the Airport at about 1:20 p.m. When she realized that she would not be able to meet him at the luggage carousels in the secure Customs Hall (as she had promised him), she and her friend repeatedly sought assistance from a visitor information counsellor, customer service agents, and Border Services officers about a traveller from Poland who had never flown before and spoke no English. As time went by, she and her friend grew increasingly distressed, frustrated, and discouraged. A Border Services officer, after searching the Secondary Immigration area (but not the entire Customs Hall), told them that there was no way it would have taken this long for someone to get through Immigration. Without checking the computer, she also told them that in all certainty there was no landed immigrant from Poland there, and that they might as well go home. Some time after 10:00 p.m., Mr. Dziekanski’s mother and her friend left the Airport and drove back to Kamloops.
about 10:30 p.m. a different Border Services officer promptly
Mr. Dziekanski’s activities in the International Reception Lounge
Mr. Dziekanski entered the semi-secure International Reception Lounge at 12:40 a.m. The Airport’s closed-circuit video showed him pushing his luggage cart into the public Meeting Area, apparently looking around for someone. Members of the public and people working at the Airport used various words to describe his behaviours — unusual, upset, nervous, angry, distraught, and bizarre. He was sweating, appeared to be talking to himself, and at one point hit the glass doors with his hands in an attempt to get back into the lounge. He used his suitcases and a chair to form a barrier. Several people approached and talked to him, but could not communicate with him. None felt threatened by him, although several were reluctant to encroach on his “territory.” Much of this interaction was caught on a bystander’s video (the “Pritchard video”), which also showed Mr. Dziekanski smashing a small folding wooden table against a glass wall and throwing a computer on the floor, breaking it. However one characterizes his agitation and frustration, it was not directed at other people.
people who were in the public Meeting Area called 911 or the
Airport’s Operations Centre about the disturbance. At 1:23
a.m., the Operations Centre called the RCMP about an apparently
intoxicated 40-year-old male in the International Reception Lounge
throwing suitcases and chairs around. The Airport’s own
security personnel were also dispatched to the scene, but on their
arrival they did not approach Mr. Dziekanski in accordance with their
“observe and report” mandate.
After the conducted energy weapon was deployed against Mr. Dziekanski, the Airport response coordinator took the prudent precautionary step of asking the Operations Centre to call an ambulance. When the coordinator was advised several minutes later that the ambulance had been upgraded to Code 3, he instructed the Operations Centre not to dispatch the Airport’s Emergency Response Services, although Airport policy required it. He also did not arrange for an automated external defibrillator to be brought to the scene, as required by Airport policy.
The response of the RCMP, Richmond Fire-Rescue, and BC Ambulance Service
Corporal Robinson and Constables Bentley, Millington, and Rundel were in the RCMP’s Airport sub-detachment when the call was received. Cst. Millington responded, and the other three officers went as well, all in separate cars. They testified that they had no discussions en route to the Airport. Notwithstanding an e-mail between two senior officers suggesting that the four officers decided en route that if Mr. Dziekanski did not comply they would use a conducted energy weapon against him, I am satisfied that the four officers did not develop any such plan.
As the four officers approached the swinging glass doors that separated the public Meeting Area from the International Reception Lounge, they saw Mr. Dziekanski. Their descriptions paint a fairly consistent picture of a man who was unkempt and sweating, breathing heavily, disoriented, agitated, perhaps emotionally disturbed, and with a wide-eyed, glazed look. He was calm and cooperative when the officers first engaged him, with his hands at his side. There was debris on the ground, but no sign of broken glass.
Cst. Bentley, assuming the role of contact officer, took an appropriate first step by saying, “Hi, how are you, sir? How’s it going, bud?” Owing to the language barrier, Mr. Dziekanski did not respond. At that point, Cst. Millington unilaterally intervened as contact officer, making hand gestures for Mr. Dziekanski to calm down, asking for “passport” and “identification,” and miming writing with a pen. Although his intervention was not warranted, I am satisfied that it was well-intentioned and was a reasonable way of establishing whom they were dealing with. The Pritchard video shows Mr. Dziekanski making a very tentative downward movement toward the nearby luggage, which I am satisfied was his attempt to comply with Cst. Millington’s demand to retrieve his travel documents.
As Mr. Dziekanski bent down (at 3:37 on the Pritchard video), Cpl. Robinson stepped in and took charge. He said, “No. Stop” in a stern, authoritative voice, and made a pointing gesture with his arm. Mr. Dziekanski stopped going toward his luggage. According to the Pritchard video he returned to a normal upright stance, with his arms at his side, engaging in eye contact with the officers. In my view he was complying with Cpl. Robinson’s direction. It was not necessary for Cpl. Robinson to intervene at all, and even if it was, given the circumstances it was an inappropriately aggressive reaction.
3:41, Mr. Dziekanski then threw up his arms, lowered his head and
turned away from the officers, moving toward a nearby counter. As he
did so, Cpl. Robinson moved closer behind him with his arm
outstretched, pointing toward the counter.
Dziekanski reached the counter at 3:44, turned and faced Cpl.
Robinson. At 3:45 Mr. Dziekanski shuffled backward a step, rotated
to his right, and picked up a stapler off the counter. At 3:46 Cst.
Bentley appeared to react to something he saw, and at 3:47 Cpl.
Robinson pulled out his baton. The Pritchard video shows Mr.
Dziekanski with his upper arms against his torso, but his lower arms
and hands are not visible. At 3:49 he may have said, “Police,
police.” Cpl. Robinson raised his left arm and pointed at Mr.
Dziekanski, and one hears the snap of Cst. Millington deploying the
conducted energy weapon in probe mode. I am satisfied that after Mr.
Dziekanski picked up the stapler, he held it in his right hand, in
front of him, and at or below his chest level. He did not brandish
the stapler by either placing it above his head or motioning with it
in an aggressive manner toward any of the officers. Further, I have
Millington and Cpl. Robinson gave three reasons for deploying the
When the weapon was deployed, one probe lodged in Mr. Dziekanski’s chest and the other in his shirt, which was flapping loosely against his body, causing the discharge of electrical current to be intermittent. During this six-second discharge, Mr. Dziekanski began screaming, with his arms flailing in front of him. He stumbled to his right, away from Cst. Millington, and fell to the floor. After a one-second break, Cst. Millington deployed the weapon a second time in probe mode, for five seconds. The current was again intermittent. Mr. Dziekanski was on the floor screaming, with his arms and hands held tightly against his chest, his body partially curled up, his legs thrashing, and his body moving around in a circular motion. In my view, the weapon’s failure to immobilize Mr. Dziekanski during the first deployment was not a justification for deploying it a second time.
other three officers then moved in, wrestled with Mr. Dziekanski, and
eventually got his arms behind his back and handcuffed him. In my
view, it was safe for these three officers to move in and restrain
Mr. Dziekanski during the second deployment, and they acted
unreasonably in not doing so then. During the struggle, Cst.
Millington deployed the weapon a third time in probe mode. In my
view, he did not adequately reassess the risk before deploying the
weapon, and neither did Cpl. Robinson before ordering him to do so.
I also am satisfied that during the struggle Cpl. Robinson applied
force with his leg to Mr. Dziekanski’s neck area when such
force was not justified, given the totality of the circumstances he
was facing at the time.
The initial claims by all four officers that they wrestled Mr. Dziekanski to the ground were untrue. In my view they were deliberate misrepresentations, made for the purpose of justifying their actions.
five to ten seconds after being handcuffed, Mr. Dziekanski stopped
kicking his legs, and he lay motionlessly while breathing heavily.
When Cst. Bentley observed
Cpl. Robinson refused the firefighters’ request to have the handcuffs removed, saying that he had been violent. In my view, his refusal was unjustified. The firefighters determined that Mr. Dziekanski was unconscious, saw no evidence that he was breathing, and could not get a radial or carotid pulse. They were surprised that the Airport’s Emergency Response Service was not on scene, as they always arrived before the firefighters.
two basic life support paramedics arrived, they immediately saw that
The RCMP’s Integrated Homicide Investigation Team (“IHIT”) officers took control of the scene, and the four RCMP officers made their police notes and returned to the Airport sub-detachment. Later that morning they were interviewed by IHIT investigators. They all testified that there was never any discussion between or among them about what had happened at the Airport, before giving their statements to the IHIT investigators. Taking into account the officers’ opportunity to discuss the incident, an understandable motivation to present an account that would justify their conduct, and the similarities in their post-incident statements, I concluded that they did discuss the incident among themselves before they were interviewed by the IHIT investigators. While the evidence does not justify a conclusion that they colluded to fabricate a story, I am satisfied that their discussions resulted in them giving surprisingly similar accounts of the incident that tended to misrepresent what had happened, and tended to portray Mr. Dziekanski’s actions in an unfairly negative light and their own actions in an unfairly positive light.
also concluded that when Cst. Millington completed the conducted
energy weapon usage report, he consistently and deliberately
misrepresented and overstated
unprofessional manner in which Cst. Millington and Cpl. Robinson
The cause of Mr. Dziekanski’s death
I considered the testimony and written reports of 14 medical experts — forensic pathologists, cardiologists, emergency department physicians, psychiatrists, an epidemiologist, and an electrical engineer. Despite a consensus that Mr. Dziekanski suffered an electrical death (i.e., a fatal cardiac arrhythmia that caused cardiac arrest), there was considerable debate and disagreement among these experts as to the process by which that fatal arrhythmia developed.
contradictory scenarios emerged from the evidence about when Mr.
Dziekanski died. The “continued breathing” scenario
postulates that he was last observed breathing about two minutes
before the Richmond firefighters arrived, which means that he
continued to breathe for at least 10 minutes after the time when the
handcuffs were applied. The “cyanosis” scenario
postulates that the evidence of
The autopsy did not disclose an anatomical or toxicological cause of death, thus ruling out a heart attack, a chronic medical condition, a blunt trauma, or an internal injury. We will never know, with absolute certainty, what caused Mr. Dziekanski’s death. The best we can do is draw inferences from the known facts, and reach conclusions about the most likely cause of death. The evidence gave rise to four possible causes of death:
The RCMP’s media response to Mr. Dziekanski’s death
The RCMP’s IHIT took charge of the investigation, to determine whether any criminal charges should be laid arising out of Mr. Dziekanski’s death. During the three days immediately following the incident, a bilingual sergeant spoke to the media and issued news releases about the incident. It is not in dispute that some of the RCMP’s public disclosures about the Dziekanski incident, during the early stages of the criminal investigation, were factually inaccurate. When the RCMP became aware of these inaccuracies, the officer in charge of IHIT decided not to correct them, choosing instead to limit public statements to matters of process, not evidence. This poorly managed media response to Mr. Dziekanski’s death was widely reported and generated negative comment in the media, culminating in an official RCMP apology. In my view, three factors were principally responsible for this regrettable media response:
Recent changes at Vancouver International Airport
Canada Border Services Agency (CBSA)
It is appalling that Mr. Dziekanski could have been cleared through CBSA’s Primary Inspection Line efficiently, only to disappear within the cavernous Customs Hall for over five hours. I recommended that Border Services officers explain to each arriving international passenger, in a manner the passenger understands, where he or she must go and how to get there. I also recommended that CBSA implement a single integrated database system for tracking each arriving international passenger’s progress through Secondary Customs and Secondary Immigration, and issue an alert if a passenger does not reach the next location within a predetermined period of time.
CBSA should do more to assist greeters who ask for help while awaiting arriving international passengers. Although federal legislation restricts passenger information that can be disclosed to greeters, an exception should be made in the case of greeters who are sponsoring immigrants. Border Services officers should be required to determine whether the passenger a greeter is concerned about has crossed the Primary Inspection Line and to make an entry in that passenger’s computer file about the greeter.
CBSA officers should receive training, regularly updated, on what interpreter services are available to them and to arriving international passengers, and how to access such services. In addition, CBSA should provide its officers with adequate resources to ensure that arriving international passengers know where they have to go within the Customs Hall and how to get there, know what is being asked of them, know if a greeter has attempted to contact them, and are assisted in their own language if they appear to be confused or distressed.
Vancouver Airport Authority
I am impressed with the Airport Authority’s prompt and thorough review of its customer care services that it undertook following Mr. Dziekanski’s death and the extensive changes that it has implemented, such as its International Arrivals Response Coordinator and Customs Hall Rover positions.
I unreservedly endorse the Airport Authority’s attempt to introduce a Passenger Record of Entry and Exit system, and I urge implementation of the single integrated database system I recommended earlier. A digital Passenger Information Board should be installed in the Customs Hall, on which waiting greeters can place their name so that arriving passengers are aware of their presence. Also, the Airport Authority’s customer service agents should be permitted to page from the public Meeting Area into the Customs Hall, and vice versa.
The Airport’s contracted security patrollers are often the first responders to medical and behavioural crises, and their current “observe and report” mandate is inadequate at such a large, busy, and prestigious international airport. The travelling public would be much better served if security patrollers received training in first aid and verbal de-escalation techniques, and were expected to actively assist members of the public who are in distress.
I commend the Airport Authority for recent improvements to its emergency and medical response services. However, one other medical emergency issue warrants attention. The Dziekanski case is an example of a safety and security incident evolving into a police use-of-force incident and then evolving further into a medical emergency incident. There was confusion about who was responsible for what in such situations. The travelling public would be well served if the Vancouver Airport Authority, RCMP, Richmond Fire-Rescue, and BC Ambulance Service worked together in formulating a plan of action for dealing with such incidents.
Finally, I recommended that within two years of this report being made public, the provincial Minister of Public Safety and Solicitor General report publicly on the extent to which the federal government and the Vancouver Airport Authority have implemented these recommendations.
Postscript — police investigating themselves
The Dziekanski incident was a case of the police investigating themselves, which gives rise to legitimate concerns about conflict of interest. The perception that investigators will allow loyalty to fellow officers to interfere with the impartial investigative process, even if not justified in a given case, can lead to public distrust and an undermining of public confidence in the police.
I agree with the Davies Commission of Inquiry’s 2009 recommendation that British Columbia should establish a civilian-based investigative body, modelled on Ontario’s Special Investigations Unit, to investigate all police-related incidents to determine whether criminal charges should be laid against a police officer. I recommended that this investigative body:
This civilian investigative body’s investigators should have the status of police officers. They would become the lead investigative agency, take control of the incident scene, question witnesses, and be in charge of forensic analyses. A special prosecutor appointed under the Crown Counsel Act would make charge assessment decisions and, if criminal charges were approved, would conduct the prosecution.
B. SUMMARY OF RECOMMENDATIONS
CANADA BORDER SERVICES AGENCY
1. I recommend that the Attorney General urge the federal Minister of Public Safety:
Communication between arriving passengers and greeters awaiting them
2. I recommend that the Attorney General urge the appropriate federal minister or ministers:
3. I recommend that the Attorney General urge the federal Minister of Public Safety to ensure that:
VANCOUVER AIRPORT AUTHORITY
Communication between arriving passengers and greeters
4. I recommend that the Attorney General urge the federal Minister of Public Safety:
Safety and security
5. I recommend that the Vancouver Airport Authority:
Emergency and medical response
6. I recommend that the Vancouver Airport Authority, RCMP, Richmond Fire-Rescue, and BC Ambulance Service:
Public report on implementation of these recommendations
7. I recommend that, within two years of this report being made public, the provincial Minister of Public Safety and Solicitor General report publicly and in writing to the Legislative Assembly on the extent to which the federal government and the Vancouver Airport Authority have implemented the recommendations contained in this report, and if one or more recommendations have not been implemented, the reasons why.
POSTSCRIPT — POLICE INVESTIGATING THEMSELVES
8. I recommend that:
Columbia develop a civilian-based criminal investigative body, which
I suggest be named the Independent Investigation Office (IIO).
IIO be mandated to investigate all police-related incidents occurring
throughout the province, in which:
IIO be accountable to the Ministry of Attorney General.
IIO be led by a director who is neither a current nor former police
officer, appointed by Order-in-Council for a fixed, renewable term of
five or six years.
member of the IIO shall have served anywhere in Canada as a police
para.(e), during the first five years of operations, the IIO may
include as members former police officers, provided that:
ensure the IIO’s unquestioned authority to act, its essential
powers be entrenched in legislation, such as:
every police-related incident assigned to the IIO, a special
prosecutor be appointed in accordance with the Crown Counsel Act.
i. The provincial Ombudsman have jurisdiction over the IIO.