Braidwood Inquiry

In this part of the report, I will summarize the testimony of each of the four RCMP officers who responded to the call to attend the Vancouver International Airport (in the order in which they testified), followed by the testimony of the officer in charge of the Airport sub-detachment. I will then summarize the testimony of:

Finally, I will set out my findings of fact and conclusions as to what happened, taking into account all of this evidence. Where there is a conflict in the evidence as to what happened, I will indicate which evidence I accept and, wherever possible, my reasons for doing so.

B. THE RCMP OFFICERS

The RCMP, which serves as the municipal police force for the City of Richmond, maintains a sub-detachment at the Vancouver International Airport that provides policing services at the Airport and a nearby small community. On the night of October 13/14, 2007, there were four officers on duty at the sub-detachment — Corporal Benjamin Monty Robinson as the officer in charge, and Constables Gerry Brian Rundel, Bill Bentley, and Kwesi Millington.

1. Constable Rundel^¹

a. Responding to the call for assistance

At about 1:26 a.m. the four officers were sitting together during a lunch break at the sub-detachment when they received a call from Richmond Dispatch. Dispatch informed them that there was an intoxicated 55-year-old, non-white male at the Arrivals Reception Lobby throwing luggage around. He had dark hair and a white coat. Cst. Millington responded to the call, and the other three officers decided to attend as well.

Each officer drove to the International Terminal separately. En route, they were updated by radio that the male was now throwing chairs through glass windows in the same area. Cst. Rundel told me that he expected, if this information turned out to be true, to arrest the individual.

It took about one minute to reach the International Terminal. All four police vehicles arrived and all four officers entered the building at about the same time. He did not remember any conversation among the officers as they entered the building. While walking through the public Meeting Area, a woman said in a distressed, panicky tone of voice, “He’s over there,” pointing to where Mr. Dziekanski was, and she or someone else said, “He doesn’t speak English.” Cst. Rundel did not stop to consult with any civilians who were present.

As he approached the handrailing near the swinging glass doors, Cst. Rundel saw
Mr. Dziekanski standing on the secure side of the doors, behind a chair. He did not see any broken glass. He described what he saw:

I was able to observe that he was very unkempt, in my opinion, hair was matted. He gave the appearance of perhaps he had been sweating. He had a — what I would term as a wide-eyed glazed focused look, but perhaps disoriented. With — with the information received on the dispatch ticket of him possibly being intoxicated, to me he did have that appearance that it was a possibility. He seemed to be, from what I recall, moving, not standing still. He — I believe he moves away from the chair and seems to be — however I best can describe it is I guess in an agitated state of some sort. Just beyond what I would call somebody who was behaving normally.^²

b. Entering the secure area

Cst. Rundel told me that when he entered the secure International Reception Lounge area, two of the other officers were already approaching Mr. Dziekanski and attempting to communicate with him, so he decided not to. Based on the information he had received from dispatch, he was anticipating that they would be dealing with an individual who was arrestable. He did not know whether Mr. Dziekanski was coming or going, and he did not know if the three suitcases he saw were Mr. Dziekanski’s. However, his training and experience taught him that he needed to further analyze the situation, so he was gathering information at that point. He estimated that
Mr. Dziekanski was about 5'10" or 5'11" tall, and weighed about 190 pounds.

Cst. Rundel heard Cst. Bentley address Mr. Dziekanski in a friendly, low, calm tone of voice, something to the effect of “Hi, how are you doing, how’s it going?” He did not recall Mr. Dziekanski responding, although he remembered Mr. Dziekanski speaking in a foreign language at about this time. There were three pieces of luggage to the right of the swinging glass doors, near the console desk.

Although Cst. Rundel did not testify about hearing Cst. Millington ask Mr. Dziekanski for his passport, he did tell me that Mr. Dziekanski turned and bent or kneeled, and pointed toward his luggage. Cpl. Robinson said, “No” in an authoritative, stern voice, and put out the palm of one or both hands, giving him a command by body language, conveying the message, “You’re not going into your luggage.” Cst. Rundel concluded that Mr. Dziekanski understood this command, because he stopped and stood up. He added:

[H]e did a very quick — quick flick of his hands and arms in a motion that to me said, “To hell with you guys, I’m out of here,” and then he went off to his left to where the counter was located.... And he had his — the front of his — his body was to the counter. He, at that point, and I didn’t see this myself, he had grabbed a metal object that was later determined to be a stapler with his right hand, and swept along the counter, quickly turned to his left with his back to the counter.

I recall seeing the stapler in his hand, in his right hand come across his upper shoulder/face area, where he immediately had a firm grasp of it, and brought his elbow down towards his chest with his fist grasping the stapler up in his upper chest area. At the same time his left — left arm came up into a fist, a firm fist with his elbow locked, and also brought it up to his upper chest area. His — I believe his left foot came forward at that time. And again this is all happening split-second, happening very fast.

It was at during — during that time that Mr. Dziekanski had moved away and positioned himself with the stapler.^³

Cst. Rundel positioned himself directly in front of Mr. Dziekanski, about six to eight feet away. Cst. Bentley was to his left and behind, Cpl. Robinson was to his right, and Cst. Millington was farther right. He told me that when Cpl. Robinson said, “No” to Mr. Dziekanski (meaning not to go into his luggage) and Mr. Dziekanski stood up, flipped up his hands (as if to say, “To hell with you guys”), and turned away, that was a non-compliant action and his behaviour was resistant. Cst. Rundel said that when
Mr. Dziekanski picked up the stapler and held it as he did, he displayed combative behaviour, although one cannot see his arms or hands on the Pritchard video (3:46).^⁴ Cst. Rundel told me that it was his observation that Mr. Dziekanski had full intention of using the stapler as a weapon to assist in his possible use of force on the officers. At this point, he feared for his safety to a certain degree. From his training he knew that officers are authorized to deploy a conducted energy weapon in the face of this type of resistant behaviour, although he added that every situation is different and a conducted energy weapon is not deployed against everyone who is resistant.

Cst. Rundel told me that they positioned themselves tactically in a semicircle around Mr. Dziekanski:

It’s all to do with safety issue. For training purposes, we’re taught in training, this individual went quickly from uncooperative to resistant to combative, including picking up a stapler, which can elevate the level of aggression, indicating to me that this individual was a risk to the public, to myself, and to himself, and my other officers. There’s a safety issue.^⁵

Cst. Rundel never considered that Mr. Dziekanski might be frightened. Now that he has seen the video showing Mr. Dziekanski’s behaviours before the officers arrived, and other information that has been received, he agreed that it is possible that he was frightened. However, at the time, this was a high-risk situation based on the information they had, and no single officer was going to go in there and try to calm him down.

Cst. Rundel did not recall the stapler ever being above Mr. Dziekanski’s head, or
Mr. Dziekanski motioning with it toward Cst. Rundel or shooting staples out of the stapler. He recalled Mr. Dziekanski stepping forward with his left foot, but otherwise did not recall seeing his body move forward.

Cst. Rundel was referred to the notes that he made in his notebook that morning, while still at the Airport, in which he wrote:

0130 hours in secure side held stapler — yelling arms up — not English — stepped towards us in front of counter. Cst. Millington deployed tazer.

He told me that the notes he made were limited, because he knew that he would be interviewed later. He said that his notes meant that Mr. Dziekanski was holding the stapler, with his arms up toward his upper chest, in a combative posture. He could not be sure whether the yelling was before or after the weapon was deployed. His reference to stepping toward the officer refers to his testimony about Mr. Dziekanski taking a step forward with his left foot.

Cst. Rundel was also referred to the statement he gave Sgt. Attew of the Integrated Homicide Investigation Team (IHIT) at 5:00 a.m. that morning, in which he stated:

He picked up a stapler, and he started ... clenching his fists and ... and, putting the stapler up above his head, mo-motioning ...making motions with it, uh ... towards us. Um ... and then at that point, Constable MILLINGTON had ... pulled out his ... TASER, and ... activated it.

He told me that the statement may have some of the events out of chronological order, but that was how he remembered it at the time he gave the statement. When asked whether the stapler was above Mr. Dziekanski’s head prior to the weapon being deployed, he told me that it was likely that the stapler was in his hand when his hand swept across his face, although he did not actually see the stapler at that moment. As to whether Mr. Dziekanski made motions with the stapler toward him, Cst. Rundel told me:

When he’s making a swinging motion across his face with a stapler, given the fact that everything is happening in a very split-second timeframe, my perception of that time is a swinging motion that could be perceived as also coming out in front of his face as opposed to — as opposed to close to his face and then coming across to his chest.^⁶

Cst. Rundel was also referred to the October 18, 2007, statement he gave to
Cpl. Brassington, in which he stated:

... he ... then picked up a ... stapler ... turned around, he had both fists in the air with the stapler [INDECIPHERABLE] his hand, and was motioning ... motioning towards us in an ... aggressive combative style, and ... that’s ... when Constable MILLINGTON ... um ... activated the TASER.

Cst. Rundel told me the statement was accurate, and supported his earlier statement. He was not able to see, on the Pritchard video, the swinging motion Mr. Dziekanski made after picking up the stapler, when he brought the stapler around to the front of his body at the shoulder/head level. He thought it might have occurred when the video picture is obscured by a reflection on the glass wall (3:42–3:45). He clarified: “The stapler above the head, making motions towards us would be after the second TASER deployment.”^⁷

Cst. Rundel was asked why four officers, standing a safe distance away from
Mr. Dziekanski, did not have time to give him a warning before the conducted energy weapon was deployed. He said:

As I said yesterday, I feared for my safety, and at that point when I fear for my safety ... but due to the fact that it was happening so fast and that
Mr. Dziekanski went from the resistant to the combative with an object, stapler, in his hand, we acted and responded appropriately in that situation.^⁸

According to his training, a conducted energy weapon causes less harm than a baton or pepper spray, and is an option when a subject displays this behaviour. He was trained that deploying a conducted energy weapon a second time should not cause any additional harm.

Cst. Rundel disagreed that Mr. Dziekanski had taken a defensive position, stating:

... there’s no doubt in my mind that he took up the combative stance and he had every intent to injure, attempt to injure, harm us officers, and anybody else in the public that was in the area that he would have access to was also a possibility, no doubt in my mind.^⁹

Cst. Rundel was asked whether he, in the company of three other officers, was really concerned that Mr. Dziekanski was capable of running away. He answered:

We all keep ourselves physically fit. And as I said yesterday, it took a TASER, two deployments, four officers for over a minute struggle, to restrain and handcuff Mr. Dziekanski, which is an incredible amount of energy on
Mr. Dziekanski’s part.

If we, in fact, had not put a semicircle around him and not contained him and he’d fled and got into any of those other public areas where other people were, with that amount of energy that he had built up inside, I venture to say I don’t know where that could have ended, but it could have gone bad. It could have — he could have injured, hurt other members of the public. He was not in a frame of mind that he was thinking rationally.

So the amount of energy that I experienced that he had, if he were to use that in any other way than resisting us on members of the public, that was a dangerous situation for the public.^¹⁰

c. Deployment of the conducted energy weapon

Within split seconds, Cst. Millington deployed the weapon. Although Cst. Rundel did not recall hearing a warning that the weapon was going to be deployed, he thought there must have been one, because he remembered knowing that it was going to be deployed. He heard the bang when the weapon was deployed. Although he did not see the probes lodge, Mr. Dziekanski responded in a way consistent with the probes having lodged and with receiving an electrical current. He was yelling and screaming. He remained standing in a combative posture, with his fists clenched and the stapler in his hand. This surprised Cst. Rundel, because he learned during training that a subject would fall to the ground. His observation was that Mr. Dziekanski appeared to be almost fighting through it. He heard Cpl. Robinson instruct Cst. Millington, while Mr. Dziekanski was still standing, to deploy the weapon a second time, by saying, “Hit him again.” After the second deployment Mr. Dziekanski released the stapler, and fell to the ground at some point after that. Then, Cst. Rundel, Cst. Bentley, and Cpl. Robinson moved in to subdue and restrain Mr. Dziekanski, feeling it was safe to do so.

Cst. Rundel was asked about his October 14, 2007, statement, in which he stated that two other officers and he “made contact with, with the male and ... wrestled him to the ground.” He acknowledged that this was not accurate: “He was down on the ground and then we came in and handcuffed.”^¹¹

Cst. Rundel said that he was trained to move in and restrain a subject while the electrical current was still flowing through, if he considered it otherwise safe to move in — the current should have no effect on the officer. Having been subjected to a five-second conducted energy weapon deployment himself during training (which he described as a very painful experience), it was his understanding that a subject returns to full strength immediately after the current stops.

He agreed that in his October 14, 2007, statement he suggested that Mr. Dziekanski might have been experiencing excited delirium, given his superhuman strength, and that in such circumstances a conducted energy weapon is the appropriate response. He told me:

That’s correct. It’s a — with somebody that’s, in the training, with excited delirium the objective is to subdue them as quickly as possible with the least amount of force, and the TASER is, in training, is an option for a less level of force, even as opposed to baton and pepper spray....

That was somebody that is suffering from excited delirium, that there’s all these physiological characteristics that are going on within their body, and they’re basically, for lack of a better word, they’re on this downhill spiral towards expiring....

And the — option is, according to the training, is to try to get this person, you know, as quickly as possible, with the lowest level of force as possible, in order to give this person a better chance of surviving.^¹²

d. Restraining Mr. Dziekanski

Cst. Rundel told me that Mr. Dziekanski was lying on his chest, kicking his legs, with both arms locked beneath his body. Cst. Rundel placed his right knee on the floor against Mr. Dziekanski’s upper right chest area to prevent him from moving that way. He placed his left knee onto Mr. Dziekanski’s upper right leg, to stop the kicking motion, and then put his upper chest area toward Mr. Dziekanski’s upper back area. Cst. Rundel, with Cpl. Robinson’s assistance, tried to get Mr. Dziekanski’s right arm freed from underneath his body so that they could handcuff it. Cst. Rundel could not recall whether there was any conversation among the officers — he was intent on getting Mr. Dziekanski into handcuffs. He was not aware that the conducted energy weapon was deployed more than twice. He believed that Mr. Dziekanski was still being resistant during the struggle; it did not cross his mind that any of his movements and noises might have been in response to the weapon discharge.

At the same time, Cst. Bentley was trying to unlock Mr. Dziekanski’s left arm, and in the process lost his handcuffs. Cst. Rundel and Cpl. Robinson were able to get
Mr. Dziekanski’s right arm behind him, and Cst. Rundel applied his handcuffs. The three officers were then able to unlock Mr. Dziekanski’s left arm and handcuff it as well. The entire struggle lasted about one minute.

After the handcuffs were in place, there was a kicking motion in Mr. Dziekanski’s legs for five to fifteen seconds, after which he stopped resisting. From Cst. Rundel’s experience, this was quite normal. Mr. Dziekanski was lying on his chest or stomach, breathing heavily. He placed his hand on Mr. Dziekanski’s back for support, in case he tried to resume struggling. At that point, Cpl. Robinson instructed Cst. Rundel to go out to his vehicle and retrieve hobbles — straps attached to the ankles that are then secured back up to the handcuffs, with the legs bent backwards.

e. Attending to Mr. Dziekanski

When he returned a minute later, Cpl. Robinson was kneeling down with
Mr. Dziekanski. Cpl. Robinson told Cst. Rundel that the hobbles were not needed.
Mr. Dziekanski was rolled onto his right side, and Cst. Rundel assisted with a pat-down and quick search of Mr. Dziekanski. He retrieved a wallet from Mr. Dziekanski’s coat pocket. He did not determine whether Mr. Dziekanski was conscious, and at no time did he observe Mr. Dziekanski’s skin turn blue.

Cst. Rundel did not observe any of the other officers check Mr. Dziekanski’s pulse. However, Cpl. Robinson was kneeling down next to Mr. Dziekanski, and Cst. Rundel assumed that Cpl. Robinson was able to monitor his breathing. About two minutes before the firefighters arrived, Cst. Rundel knelt down near Mr. Dziekanski, who was lying on the right side of his chest, with his right leg straight and his left leg slightly bent. He heard him breathing and snoring.

f. Arrival of the Richmond firefighters

While Cst. Rundel was in the public Meeting Area talking to Mr. Pritchard, he saw the firefighters arrive. He went back inside to see if any assistance was needed.
Cpl. Robinson was kneeling beside Mr. Dziekanski. The female firefighter knelt down and began her assessment of Mr. Dziekanski. The male firefighter made a request to Cpl. Robinson to remove the handcuffs. Cpl. Robinson said no, because he was concerned that Mr. Dziekanski might regain consciousness and become violent. The firefighter accepted that answer.

g. Arrival of the BC Ambulance Service paramedics

Cst. Rundel said that when the paramedics arrived (about a minute after the firefighters), a second request was made to remove the handcuffs. Cpl. Robinson instructed Cst. Rundel to move in and remove the handcuffs, which he did.

h. Post-incident discussions with the other officers

Cst. Rundel told me that after the incident he had generalized discussions with the other officers about the trauma they were going through, but other than that he has been very careful not to discuss details of the incident and what his evidence would be at this Inquiry.

i. Post-incident reconsiderations of the officers’ actions

Cst. Rundel said that after viewing the Pritchard video, he saw that the video fully supported his version of the events and the details that he gave in his statements.

Cst. Rundel told me that Mr. Dziekanski’s death, which was never intended, was a very terrible outcome. Since the incident, much has been learned about what happened. He added:

A I’m sure there isn’t one person that’s looking back and wondering, you know, if they could have done something differently.... But given the fact that we came in without all that prior knowledge and had to deal with the situation with the limited information we had, I can’t — I can’t say that I could have done anything differently. I’m — that’s unfortunate, but that is how it is.

2. Constable Bentley^¹⁴

a. Responding to the call for assistance

Cst. Bentley told me that the RCMP’s Airport sub-detachment had two conducted energy weapons. They were stored in a lockup safe, available to officers on a first-come, first-served basis. His normal practice was to check the safe when he came on duty. He wore one while on duty at the Airport sub-detachment about once every three shifts. He likely checked the safe when he came on duty on October 13, 2007, but there must have been no weapons available.

He heard the dispatch call over his radio while he and the other three officers were in the lunchroom of the Airport sub-detachment. There was no discussion of the call, or who would attend.

En route to the Airport, he did not activate his siren or lights. He received a dispatch update, but got no other information over the radio, and had no discussions with the other officers. He stated:

Q Was there a plan in place as to how to deal with
Mr. Dziekanski once you got to this point?

A There was no plan in place. I think, based on the information we received, we wanted to attend the call as soon as we could and make an assessment as to what was going on before we decided any appropriate action.

A A call like this, it’s — quite frankly, it’s hard to plan for. You really need to go and assess before you develop any sort of plan.

A The main assessment I wanted to do was to speak with the subject of complaint, analyze the area, speak with him, see what his mental state was at.^¹⁵

He had no conversations with the other officers at the doors leading into the International Terminal building. As he was entering the building, a female employee of Horizon Airways approached him. She was very excited and in a very high fast voice told him, “He’s over by the glass.” Cst. Bentley said that this Horizon employee also told him that Mr. Dziekanski was breaking the glass or trying to break the glass. He did not receive or hear any other information from other civilians.

Cst. Bentley told me that the other three officers did not say anything to him. He described what he saw and did as he approached the handrailing:

Based on the information that we had received about the call, as we were walking towards the male he was standing there just staring at us with his eyes wide open, hands at his side, and debris was around his feet. From my law enforcement experience, my gut instinct told me that he was going to start a fight with us. I did what I simply call is a tool check, and I wanted to see if we had a CEW available to us as an intervention option if he became combative. I wasn’t sure at the time if any of the other officers had a CEW on their person. I was a little bit ahead of the group at the time, so I kind of turned my head back to the side and directed a general question at the other officers, asking them something to effect of, “Do you have a TASER on [i.e., on their person]?”^¹⁶

This initial assessment, that Mr. Dziekanski was going to start a fight with them, was based on the dispatch information (that he was breaking and damaging furniture, was extremely intoxicated, and was throwing chairs through glass), what the Horizon employee told him, the debris around Mr. Dziekanski’s feet, and the way he was standing staring at the officers. “To me, this is not the behaviour of a rational person. I thought that perhaps he was emotionally disturbed and unpredictable.” He did not see any broken glass, which he agreed was an indication that some of the initial information he had received was exaggerated. He added that when they initially engaged Mr. Dziekanski, he was cooperative. Cst. Bentley did not expect that
Mr. Dziekanski may start a fight, but he just wanted to be prepared for it.

Before entering the secure area, Cst. Bentley did not stop and question any civilians, did not hear anyone saying that Mr. Dziekanski did not speak English, and did not receive any directions or instructions from the other officers. In his view,
Cst. Millington was the lead investigator, Cpl. Robinson was the supervisor, and
Cst. Rundel and he were assist officers, and that did not change throughout the incident. Based on what he had been told and the debris he saw at Mr. Dziekanski’s feet, he thought they had reasonable and probable grounds to arrest him for mischief. Mr. Dziekanski was initially calm, and if that continued, Cst. Bentley expected that they could arrest him with little or no force.

Cst. Bentley agreed that in his October 14, 2007, statement to the IHIT investigator, he said that as they approached the glass partition separating the public Meeting Area from the secure International Reception Lounge, he could see Mr. Dziekanski on the secure side: “[T]he male was uh, just kinda looking at us. From his demeanour he looked like he was uh, waiting to fight.”^¹⁷

b. Entering the secure area

As the swinging glass doors opened and the officers entered the secure area,
Cst. Bentley said to Mr. Dziekanski, “Hi, how are you, sir? How’s it going, bud?” He did not get a verbal response. Mr. Dziekanski’s demeanour seemed calm. His hands were at his side, and he was cooperative. He was fairly close to Mr. Dziekanski and did not smell any liquor on his breath. All four officers were close together.
Cst. Millington took over as lead investigator and started to engage Mr. Dziekanski. He said something to him, and a few seconds later Mr. Dziekanski turned around, threw up his arms and walked away from them toward a desk. As Mr. Dziekanski did so,
Cpl. Robinson took over, saying something to Mr. Dziekanski and using hand gestures, swinging his arms out. Cst. Bentley continued:

I remember Mr. Dziekanski looking side-to-side on the desk, turning his head left to right. I got the feeling then that he was looking for some sort of object to use against us. I remember seeing a stapler on top of the desk. I remember him grabbing that with his right hand and turning around with it, swinging it out in front of him. At that particular time myself and Corporal Robinson were the closest members to Dziekanski. We were very close, actually, to the point that I thought I was going to be hit with the stapler. I tactically repositioned back, and while I was doing that I grabbed my defensive baton and deployed it. I remember once my defensive baton was deployed, I looked at the peripheral of my right eye and I saw that Constable Millington had deployed the TASER and I heard a — like a loud sound, the sound of the CEW being deployed and striking Mr. Dziekanski.

Cst. Bentley told me that when Mr. Dziekanski put his arms up and moved away, he thought Mr. Dziekanski was trying to evade them and might be trying to flee: “He’s being defiant, that he doesn’t want to listen to us, that he’s had enough of dealing with us.”^¹⁸ He described this behaviour as non-cooperative, although he agreed that his assessment might have been different if he had known that Mr. Dziekanski was moving in the same direction that one of the other officers (Robinson) was pointing. Mr. Dziekanski was about an arm’s length away from Cpl. Robinson and him.

Cst. Bentley was referred to the Pritchard video (3:39–3:45), which shows
Cpl. Robinson with his arm out horizontally, pointing toward the counter, and
Mr. Dziekanski moving in that direction. He told me that he noticed this pointing action when he first viewed the video. When asked how he interpreted
Cpl. Robinson’s pointing, he stated:

I interpret that observation as Mr. Dziekanski had turned around, thrown up his arms, began to walk away from us and because he’s being defiant, Corporal Robinson is now ordering him to the desk or to put his hands on the desk.^¹⁹

He was asked whether, if Cpl. Robinson did in fact order Mr. Dziekanski to move over to the counter, Mr. Dziekanski’s body language of shrugging and raising his arms into the air could be interpreted as an act of resignation and compliance. He answered: “Perhaps.... I just think it’s open for interpretation. It could be read that way. I can’t give a definitive yes.”^²⁰ He could not offer another possible interpretation.

When Mr. Dziekanski swung the stapler around (3:46) and Cst. Bentley thought he was going to hit him with it, Cst. Bentley began to tactically reposition himself to his left. Mr. Dziekanski was now about two feet greater than arm’s length away, and the stapler came within a foot or two of himself. The stapler was in the closed position, it was not pointed at him, and Cst. Bentley did not recall any staples being discharged. At that point, Cst. Bentley began to draw his baton with his left hand, “In my mind, he’s now armed himself with a weapon, has the intent on using it against us, and I need to react accordingly.”^²¹ In his view, Mr. Dziekanski was now displaying combative behaviour, which justified use of an impact weapon such as a baton. He said that when Mr. Dziekanski swung around with the stapler, he had a concern for the personal safety of himself, the other officers, and members of the public who might enter the area.

Cst. Bentley said that he did not hear Mr. Dziekanski scream until the weapon was deployed against him. He was referred to a note he made in his notebook before leaving the Airport that stated, “Subject grabbed stapler and came at members screaming.” He told me that when he made the note he believed it was accurate, but then added:

Everything happened so fast. I was tired when I made my notes. After getting adequate amount of sleep, adequate time to reflect on the incident, as well as watching the video to refresh my memory, I realized that it was incorrect.^²²

When he was asked whether looking at the video made him realize that Mr. Dziekanski had not come at them screaming, he stated:

A Just to clarify, I believe that it’s somewhat accurate, it’s just out of sequence. And when I wrote those notes, I had got confused with after — pardon me, when he was TASERed for the first time, when he was TASERed, he was screaming and his body movement from the TASER caused him to kind of move forward. And I think that’s why there was some confusion and I had put that in my notes.

Cst. Bentley said that although he included in his notes that Mr. Dziekanski came at them screaming, he did not say anything to that effect in his three written statements to IHIT investigators.

Cst. Bentley was asked to reconcile his testimony, to the effect that Mr. Dziekanski did not point the stapler at him, with his statement to the IHIT investigator at about
5 a.m.: “He grabbed a stapler and, uh, started to kinda aiming it at members.” He stated:

A There was just — sorry, there was just some confusion with him swinging the stapler out and whether he was pointing it, or I do believe he was in fact pointing it at the members. He had finished swinging it out and it was held out in front of him, and I took that as a gesture as he was pointing that at us.

Q Okay. Tell the Commissioner how you’d like to change the answer you gave earlier today, now that you’ve seen your statement.

A I’d like to change my answer to state that he had swung the stapler out in front of him and it was pointing at myself.^²⁴

In his October 14 statement, Cst. Bentley stated that when the four officers gained entrance to the secure side they kept their distance from Mr. Dziekanski, who was staring at them. At that point Mr. Dziekanski started looking around — it was like he was looking for a weapon. When it was suggested to Cst. Bentley that Mr. Dziekanski did not look around for a weapon when the officers entered the secure area, he responded:

What I was actually describing in my statement was — referring to was when he walked over to the desk and he was turning his head side-to-side. I just hadn’t articulated that to the corporal, but that’s what I intended to mean.^²⁵

Cst. Bentley was asked why he went directly into the secure International Reception Lounge, jumping over the handrail, rather than approaching more casually and getting more information from bystanders. He responded:

A Well, there was no urgency at the time, but I felt that we were dealing with someone who was acting irrationally, so you wanted to be near him or at least engage him as soon as possible.

Q Well, did you think that jumping over the barricade might just make him feel a little more nervous?

Cst. Bentley agreed that in his October 14 statement he said that Mr. Dziekanski started backing up, looking for something to grab, grabbed the stapler, and swung it out at them. Mr. Dziekanski adopted a triangle stance with his feet spread apart and his arms down at his side. He told me:

A I just interpreted that his feet were wider apart than perhaps normal for balance and that at any time his arms could come up and perhaps engage us.

Q Yeah. Because your mindset from the minute you left the detachment, “I’m in for a fight,” right?

A Because he’s armed himself with a weapon. And if I try to engage him with just my hands, there’s a good chance that I could get hurt.^²⁸

c. Deployment of the conducted energy weapon

Cst. Bentley told me that he believed at the time that the conducted energy weapon was deployed twice, both times in probe mode. He was not aware, until the report from Crown Counsel was released, that it had been deployed more than twice. His recollection was that Mr. Dziekanski was still standing when Cpl. Robinson gave
Cst. Millington the instruction to “hit him again,” although Mr. Dziekanski may have collapsed to the floor before the weapon was actually deployed the second time, as the video suggests.

He maintained his view that Mr. Dziekanski appeared to be fighting through the weapon’s discharge: “I don’t know whether he had any voluntary control over his body, but it was the expression on his face as well as the screaming and the way he did it that made me believe he was trying to fight through it.”^²⁹

He told me that in his training he was taught to use the level of force that the subject is displaying, or a force higher than that of the subject.

d. Restraining Mr. Dziekanski

Cst. Bentley said that Mr. Dziekanski fell to the ground as a result of the first deployment of the conducted energy weapon. He agreed that his statement to the IHIT investigator, that Cpl. Robinson and Cst. Rundel took him down, was inaccurate. After Mr. Dziekanski fell to the floor, those two officers moved in to restrain him. When Cst. Bentley saw that Mr. Dziekanski was putting up a very big struggle, he moved in to assist them. He attempted to get Mr. Dziekanski’s left arm behind his back so that he could be handcuffed. He pulled out his handcuffs but was not successful in handcuffing him — every time he got close, Mr. Dziekanski would grab his handcuffs in what Cst. Bentley perceived to be an effort to avoid being put into restraints. Cst. Rundel was able to handcuff Mr. Dziekanski with his handcuffs, so
Cst. Bentley put his away. He could not recall receiving any information or directions from other officers, before the handcuffs were applied.

Cst. Bentley said that he had no recollection of Cst. Millington deploying the conducted energy weapon in push-stun mode after the two probe-mode deployments — he was focusing on his task of trying to get Mr. Dziekanski into restraints.

Cst. Bentley told me that he has been involved in more than 100 arrests but has never seen a situation where it took four officers to restrain someone.

He was aware that Mr. Dziekanski was making noises before he was handcuffed, but he interpreted those noises and his movement as resistance to being handcuffed, not a response to the weapon. He explained that a response to the weapon would last only as long as the weapon was discharging — it would only be a few seconds followed by breaks. In this case, Mr. Dziekanski’s struggling was continuous until he was handcuffed.

He told me that he pulled out his defensive baton before the conducted energy weapon was deployed, but he did not use it against Mr. Dziekanski. When he was unable to slide it between his tool belt and pants, he laid the baton on the floor. He is shown on the video banging the tip of the baton on the floor, which he said he did in order to collapse it. He said that he did this after Mr. Dziekanski was handcuffed; he was three or four feet away from Mr. Dziekanski, or a little bit closer. He could not say whether Mr. Dziekanski reacted to this.

e. Attending to Mr. Dziekanski

Cst. Bentley told me that Mr. Dziekanski moved a little bit for five to ten seconds after being handcuffed, then stopped. Mr. Dziekanski was lying on his side like in the recovery position, handcuffed behind his back with his eyes closed. Cst. Bentley was facing Mr. Dziekanski, Cpl. Robinson was behind him, and Cst. Rundel was near his feet. Cst. Bentley observed that Mr. Dziekanski went unconscious, although he could see his chest moving up and down, and he could hear him breathing quite loudly: “It’s a loud breathing like when you go out for a hard run, you exhaust yourself physically, trying to catch your breath.”^³⁰ Although he knew how to perform a proper breath test and carotid pulse test, he did neither, nor did he see any of the other officers check his pulse or breathing.^³¹ However, he observed an Airport Operations man in a black suit check Mr. Dziekanski’s carotid pulse.

When he realized that Mr. Dziekanski was unconscious, he immediately called for Emergency Health Services to attend. His call was for a routine response — he would only have requested Code 3 if the subject was unconscious and not breathing. He added:

A Shortly after I made my initial call, his skin started turning a bluish colour. I became deeply concerned, so I upgraded the call to Code 3.

A Using my portable radio and requesting dispatch to contact EHS and have them arrive Code 3.^³²

He told me that it was Mr. Dziekanski’s face that turned a light bluish colour. The colour persisted, but never got darker. He had no discussions with other officers or civilians about Mr. Dziekanski’s condition before upgrading the call to Code 3. He told me that when Mr. Dziekanski initially went unconscious, he thought it might be an act, but when he saw Mr. Dziekanski’s face turn blue five or ten seconds later, he knew it was not. He agreed that, given Mr. Dziekanski’s unconsciousness, laboured breathing, and turning blue, they were facing a medical emergency, and he was very concerned, which is why he requested Code 3. He realized that Mr. Dziekanski might require cardiopulmonary resuscitation. However, he took no steps to have a defibrillator brought to the scene, thinking that Cpl. Robinson or the Airport Operations employee who had taken Mr. Dziekanski’s pulse would take the initiative.

Cst. Bentley told me that about four minutes after the weapon was first deployed, Cpl. Robinson (who had been continuously kneeling behind and bending over
Mr. Dziekanski) instructed him to go out to his cruiser and retrieve a camera and audio recorder, which he did. On his return, he took photographs inside the secure area (Exhibit 46) and, at Cpl. Robinson’s direction, interviewed several witnesses in the public Meeting Area.

f. Arrival of the Richmond firefighters

Cst. Bentley said that he was in the public Meeting Area when the Richmond firefighters arrived, not in the International Reception Lounge as shown on the diagram marked by Captain Graeme (Exhibit 17).

g. Post-incident discussions with the other officers

Some time after 2:30 a.m., Cpl. Robinson instructed Cst. Bentley to return to the Airport sub-detachment and to wait for Integrated Homicide Investigation Team officers to attend, and to provide them with a statement. Cst. Rundel returned at about the same time. Cpl. Robinson remained at the scene, but Cst. Bentley had no recollection of seeing Cst. Millington back at the sub-detachment.

Cst. Bentley was asked whether he discussed the events at the Airport with the other officers:

Q But are you telling us, today, that you have no memory of you and your fellow officers at the sub-detachment before IHIT arrived and before the staff representative arrived, of discussing the events that had just transpired and each officer’s version of those events?

Q Now, you’re saying you don’t remember the details of a conversation or you don’t remember whether there was even any discussion among the officers about the events that had transpired?

A I’m saying I don’t remember if there was any discussion with fellow offers [sic] — officers about the events that transpired....

Q Is it your testimony that since leaving YVR’s terminal and heading back to the sub-detachment, you have no memory of ever discussing with Corporal Robinson the events in question and comparing your version against his version?

A What I do remember is we did have what’s referred to as a critical incident debrief, where we all told our version of the events that transpired that evening....

A Everyone gave their version of the events. There was no discussion amongst members, they just told their side of the story. That was it.^³³

Cst. Bentley told me that when the IHIT investigator interviewed him, he knew that his response was going to be why he had used force that night or that he was going to have to justify using force that night.

h. Post-incident reconsiderations of the officers’ actions

Cst. Bentley told me that after he viewed the Pritchard video on television, his memory was refreshed and he remembered that he had made a comment to the other officers as to whether they were carrying a conducted energy weapon. He contacted the IHIT investigators in order to set the record straight, and was interviewed again on November 22, 2007.

Cst. Bentley was asked whether there was anything that he would like to say to
Mr. Dziekanski’s mother. He responded:

That I’m sorry for her loss and that my heart goes out to her and her family.^³⁴

3. Constable Millington^³⁵

a. Responding to the call for assistance

Cst. Millington told me that he obtained a conducted energy weapon when he came on duty on the evening of October 13, 2007, and spark-tested it. They were available on a first-come, first-served basis.

He and the other three officers were having lunch together when the dispatch call came in. He was the first to respond, so the call was assigned to him. There was no discussion of the call when it came in to the lunchroom, and there was no instruction or assignment about who was to attend. All four officers got up, left and went to their separate cars, and proceeded to the International Terminal building without lights or sirens. En route to the Airport, Cst. Millington received the dispatch information on his computer. The only part of the message he paid attention to was the location. The message read: “Intox 55yr male in international arrivals in reception lobby throwing luggage around // non-white, drk hair white coat as per ops // no other details avail.” While driving to the scene, he received an update stating, “Male is now throwing chairs thru glass windows in that area.”

Q Was there any discussion amongst the four officers en route to the Airport building?

Q And when you got out of your cars and before you actually physically entered the Airport, did you and your other three officers have any discussion about the call?

Q And no discussion amongst the four officers about the call in any way up to the point of your entry into the Airport?

As they entered the International Terminal building, Cst. Millington heard some yelling, but did not understand it and did not know where it was coming from. He heard a civilian say, “He doesn’t understand English. He speaks Russian.” He did not remember receiving any other information. Cst. Bentley turned to him and asked whether he had a TASER, and Cst. Millington said, “Yes.” There was no other discussion between him and his fellow officers, or with civilians, prior to entering the secure area.

As Cst. Millington approached the swinging glass doors, he saw Mr. Dziekanski on the secure side, walking back and forth, pacing. He was not breaking anything or making threatening gestures, and Cst. Millington saw no signs of broken glass or any indication that luggage had been thrown around. He did observe that there were some chairs near Mr. Dziekanski that were somewhat blocking the doorway. That observation, plus the yelling he had heard, satisfied him that there was some accuracy to the initial dispatch information.

Cst. Millington said that Mr. Dziekanski was agitated. He was sweating and breathing heavily, and his eyes were really wide. He suspected that Mr. Dziekanski was under the influence of a drug or alcohol, but he did not smell any alcohol.

b. Entering the secure area

When I got into the secure area, like I said, he was walking back and forth. He was very — seemed very sweaty and his eyes were wide, and seemed very agitated. What I tried to do then is to use some hand signals, because I heard that he didn’t understand English, to try to get him to calm down. I pushed my hands towards the floor and I mentioned what I thought to be universal words, I used two words, “passport” and “identification.” He didn’t seem to understand. So I put my hand up and motioned with a mime pen, I guess you could say, to try to further, I guess, explain myself.

At that point he threw his hands up and I interpreted that to be defiant. He turned away from us and knocked some things off the desk that was behind him. I don’t know what he knocked off. He then picked up a stapler, which was on that same desk and he turned towards us and it was in the open position. He held it up with one hand, fist with the other, and started to approach us with hands up, and I deployed the TASER at that point.^³⁷

He told me that when he watched the Pritchard video he realized that Cst. Bentley had greeted Mr. Dziekanski by saying something like “hello, sir,” although he did not recall hearing it at the time. The hand gesture he made in order to get Mr. Dziekanski to calm down involved placing his hands at chest height, with palms facing down to the floor, and pushing his hands down. This gesture, which he made as soon as he saw Mr. Dziekanski, is not captured on the Pritchard video. He said that the hand gesture he made after saying, “passport” and “identification” can be seen on the Pritchard video, at 3:38.

Cst. Millington said that he did not see Mr. Dziekanski go toward his luggage, but did see him go toward the desk. At the time, he did not see Cpl. Robinson point toward the desk because he was focused on Mr. Dziekanski, but did see it later on the Pritchard video. When asked whether he thought Mr. Dziekanski’s movement toward the desk was an act of compliance with Cpl. Robinson’s direction, he stated:

He was moving towards the table. Corporal Robinson was also pointing towards the table, but I interpreted that from looking at the video that he was doing it regardless of where Monty, Corporal Robinson was pointing.^³⁸

Later in his testimony, Cst. Millington agreed that if Cpl. Robinson told Mr. Dziekanski not to go near his bag and he stepped away from it, that would be obeying an instruction. However, he later said:

Q So Officer, my question here is in the context of you now appreciating that it becomes apparent that Corporal Robinson is ordering or commanding Mr. Dziekanski to go to the counter. Would you now agree that the body posture of Mr. Dziekanski raising his hands, shrugging his shoulders and turning around and heading away towards the counter is, in fact, and can only be interpreted as an act of total compliance?

A As I’ve said before, I still see it as a movement of defiance based on the way he moved his hands.^³⁹

Cst. Millington was referred to his October 14 statement, which included the following:

We went in and ... saw some chairs lying around and a male who was yelling and it wasn’t making sense. Someone yelled that he didn’t speak English, so we tried to calm him down by using hand signals ... you know, try to calm down, and he backed away from us and he was still yelling. He didn’t listen to anything we were saying.^⁴⁰

He agreed that the chairs were not lying around, but were standing. He agreed that his reference to Mr. Dziekanski yelling may have been wrong. He told me that when Mr. Dziekanski turned away from the officers, he interpreted that as not listening to them.

Q Now, during your training, were you told anything about a condition referred to as agitated or excited delirium?

A Yes. We were told that sometimes a person can exhibit excited delirium — symptoms of excited delirium, and we’re trained that the TASER is a very effective tool because if someone is exhibiting excited delirium or has that condition, they are normally focused and aggressive and other methods of intervention do not have an effect, and the TASER is most effective for that, because it causes immobilization and we can gain control of a subject that’s exhibiting those — that condition, if you will....

Q On the night in question, did you — did it occur to you that Mr. Dziekanski might be exhibiting some of the signs of agitated delirium as you’d been trained?

A Yes. Basically, what I saw with regards to him being sweaty and his eyes really wide, and I think I said clammy in my notes as well, to that agitated state is very typical of someone who is — who has excited delirium or is under that — has that condition, sorry.

Q All right. Did making those observations have any impact on what you decided to do at the scene?

A When I got there, no. I wanted to communicate with him, and that was my primary goal.^⁴¹

Cst. Millington added that he was trained that people with excited delirium must be restrained before they can be treated; there can be no medical treatment without restraint, so restraint is the first goal.

He was referred to various portions of the training materials he used during his conducted energy weapon training that dealt with the medical safety of the weapon, which included statements to the following effect:^⁴²

Cst. Millington told me that he had no recollection of Mr. Dziekanski saying something in Polish moments before he deployed the weapon.

c. Deployment of the conducted energy weapon

Cst. Millington demonstrated how Mr. Dziekanski was holding the stapler in the open position at chest level. He was asked for his rationale for deploying the conducted energy weapon:

He had the stapler open, his other fist raised. He’s — was in a combative stance, as we call it, and was approaching the officers, I believe, with the intent to attack. So I deployed the TASER at that point.^⁴³

He agreed that Mr. Dziekanski was not approaching him, and Cst. Bentley had gotten out of the way, so Mr. Dziekanski was moving toward either Cst. Rundel or
Cpl. Robinson. He deployed the weapon in probe mode on his own initiative, without any instruction from another officer to do so. He did not dispute the data download analysis conducted by Cst. Baltzer, showing that the first weapon discharge lasted six seconds, which means that Cst. Millington held the trigger down for that period of time. He agreed that the sounds Mr. Dziekanski made were very loud and were consistent with extreme pain. He told me that he believed that Mr. Dziekanski was still standing at the completion of the first discharge so, one second later, he discharged it again in probe mode for five seconds. He gave his rationale for doing so:

From my training, the effects of the TASER being fired are that the person that it’s applied against is supposed to fall immediately, and that’s supposed to immobilize him. It did not have that effect on Mr. Dziekanski, so I felt it was necessary to fire it again, and so I did.^⁴⁴

He said that he discharged the weapon the second time on his own initiative without any instruction from another officer. At the completion of that discharge,
Mr. Dziekanski was on the ground. At that point the other officers moved in to restrain Mr. Dziekanski and get his arms behind his back, but he was kicking and fighting and struggling with them. Cpl. Robinson instructed him to deploy the weapon again, which he did in probe mode. However, the weapon made a clacking sound when he deployed it that, according to his training, meant that the current was not going through properly. Since Mr. Dziekanski’s kicking and struggling was consistent with his behaviours before the third deployment, Cst. Millington concluded that no electrical current was flowing at all.

Consequently, Cst. Millington removed the cartridge from the weapon and deployed it in push-stun mode against Mr. Dziekanski’s rear shoulder area in an attempt to get pain compliance so the other officers could get his arms behind his back. He did so on his own initiative and without telling anyone that he was going to do so. He did not dispute that the data download recorded a nine-second discharge. He could not say exactly how long the weapon was in contact with Mr. Dziekanski, but he was sure that it was less than the nine seconds, because Mr. Dziekanski was moving and struggling, and he heard the same clacking sound, which in push-stun mode, means the weapon is not in contact with the subject.

Cst. Millington told me that he recalled deploying the weapon only four times. He was advised that Cst. Baltzer’s data download analysis showed a fifth deployment in push-stun mode for six seconds. He told me that when he viewed the video he could hear the clacking sound for this entire period, which indicated to him that, “I may have been holding the trigger, but it definitely was not in contact with him.”^⁴⁵

He told me that he had never deployed a conducted energy weapon in the field before this incident. He was trained that the conducted energy weapon is the least injurious method (to the subject) to gain control of a subject. In this case, he did not see where the two probes landed and did not know whether both probes made contact. He was also trained that, to achieve safety, an officer’s level of intervention should always be one step higher than the force being used. He said that he was trained that multiple discharges of the weapon may be dangerous, and that they should be avoided whenever possible unless situational factors dictate otherwise.

Cst. Millington said that he listened with headphones to the Pritchard video and to an enhanced audio version, and prepared a table identifying when he heard clacking during the second through fifth deployments of the weapon (see Exhibit 53):

Cst. Millington told me that if he had known at the time that Mr. Dziekanski had fallen to the floor during the first discharge of the weapon, he would not have deployed it again right away: “I would have reassessed the situation and we would have tried to move in and take control, similar to what we did before the third application, and if it was necessary, I would have applied the TASER at that time.”^⁴⁶ He told me that, from viewing the Pritchard video, he had moved around to the other side of Mr. Dziekanski before the time of the fifth deployment of the weapon: “I may have, due to the stress of the situation, been holding the trigger, but it definitely was not in contact with
Mr. Dziekanski at the time.”^⁴⁷

He also agreed that a reference in his October 15 statement (to the effect that he cycled the weapon twice because Mr. Dziekanski was still standing) was in error — he was on the ground by the end of the first cycle, although at the time he believed
Mr. Dziekanski was still standing. However, he maintained the accuracy of his statements to IHIT investigators that after Mr. Dziekanski picked up the stapler he “approached” or “moved towards” or took one or two steps toward the officers — he told me that it is shown on the Pritchard video at 3:49. He was also referred to a portion of his October 15 statement in which he said, “He reached and grabbed the stapler, had it in the open position and had it raised high and then started advancing toward us.” He said that by “high” he meant Mr. Dziekanski had it above his waist. He maintained this position later in his testimony:

Q I put it to you, sir, the impression you were trying to convey was that he had this thing up in the air, correct?

A That’s not the impression that I got from it. “High” can mean over the waist or high above the shoulder....

Q Well, there’s a significant difference between raised high and raised to waist level, right?

Q Are you seriously asking us to believe, sir, that you weren’t intending to convey to the corporal that this thing was raised up in the air?

Later in his testimony, he was asked what he would expect a subject to do, if he ordered the subject to “put your hands up high”:

Q If you instructed a person to raise their hands high, wouldn’t you expect them to raise them in the manner I’m raising them?

A Well, just after this the other three members move in and I soon follow to attempt to gain control of the male. He was combative, but we’re still — didn’t have him under control. So when they were — attempts to gain control of him, he was still kicking and fighting with the members and was not moving his hands behind his back, and that’s when I was advised to use it again.

Q So was the decision to fire the third shot yours, or were you following the instruction of your corporal?

Cst. Millington agreed that, because of the medical risks associated with multiple deployments, he was trained to avoid repeated deployments unless situational factors dictate otherwise. However, he acknowledged that when he made his reassessment before each deployment after the first one, he did not weigh the issue of medical impairment that might arise — it was a fast-moving situation and he was acting according to his training.

d. Restraining Mr. Dziekanski

Cst. Millington was referred to several passages in his handwritten notes and his October 14 and 15 statements, in which he stated that the officers wrestled
Mr. Dziekanski to the ground. He agreed that all those passages were in error, “That’s what my notes said and my statement, and he fell to the ground on his own. I made those notes and statement at the time, but he had fallen on his own. I didn’t realize that.”^⁵¹

e. Attending to Mr. Dziekanski

Cst. Millington told me that a minute or two after Mr. Dziekanski was handcuffed,
Cst. Bentley said to him that Mr. Dziekanski’s ears were turning blue, and Cst. Bentley called Code 3. Cst. Millington agreed that this was a serious medical development and he was concerned. He would have called Code 3 if Cst. Bentley had not. He suggested that Mr. Dziekanski be moved into the recovery position, to allow for better breathing and circulation. He had done this for other subjects in handcuffs.

Cst. Millington was aware that Mr. Dziekanski was not moving, but did not know whether he was unconscious. He did not check his pulse or breathing or check for airway obstruction, and did not observe Cst. Rundel or Bentley do so. He asked
Cpl. Robinson if Mr. Dziekanski was breathing, and he said, “Yes.” Cst. Millington was referred to his handwritten notes (Exhibit 57), which included the following entry:

Member/writer observed Cpl. ROBINSON check pulse every couple of mins while male was in recovery position. Male had a pulse.

Prior to the arrival of the Richmond firefighters, Cst. Millington did not see
Mr. Dziekanski move and did not observe anyone else check Mr. Dziekanski for pulse, breathing, or airway obstruction.

Cst. Millington was referred to a section of the Operational Manual that states: “Ensure the individual receives medical attention if any unusual reactions occur or if you think that he or she is in distress.” He said that he thought he discharged his responsibilities under that provision — there was no obstructed airway or laboured breathing, and Mr. Dziekanski had a pulse. He did not think that it was necessary to ask an Airport security person to obtain a defibrillator. Although he was aware that Mr. Dziekanski’s ears had turned blue, he added, “I didn’t look forward to what that might have led to.”^⁵² He expected that the ambulance would arrive quickly after it had been upgraded to Code 3.

He was also referred to the “excited delirium” section of the Operational Manual that states: “If no EMS is present at the scene and the subject suddenly becomes quiet and stops resisting, EMS should be summoned and preparation be made for CPR.” He told me that he believed that Mr. Dziekanski had been prepared for CPR, by turning him into the recovery position; the handcuffs could be removed quickly when the medical first responders arrived.

f. Arrival of the Richmond firefighters

Cst. Millington told me that when the Richmond firefighters arrived, Cpl. Robinson was near Mr. Dziekanski’s upper body area and he was further back by the leg area. He thought that Cst. Rundel and Cst. Bentley were in front, but he was not sure.
Cst. Millington stood back to give the firefighters more room. He heard them ask that the handcuffs be removed, and thought Cpl. Robinson complied, but did not hear any conversation.

Cst. Millington agreed that the conducted energy weapon training materials advised the officer to tell those giving medical attention that the subject had been subjected to 50,000 volts of electricity, and to make available to medical personnel the Medical TASER Information Sheet. He told me that he had no recollection of this information sheet, and it did not occur to him to tell the Richmond firefighters about the number of times he had deployed the weapon against Mr. Dziekanski: “I was not part of the conversation and other members were aware that multiple times were used.”^⁵³

g. Accuracy of his notes and statements

Cst. Millington made handwritten notes while still at the Airport and gave written statements to IHIT investigators on October 14, 15, and 18.^⁵⁴ He was referred to the notes he made while still at the Airport. He agreed that some of the statements in his notes were inaccurate, including that the weapon was cycled three times and that members wrestled him to the ground. “It was my best recollection at the time. It was a fast-moving, stressful situation, and that is what I jotted down at the time.”^⁵⁵ However, later in his examination it was pointed out that his notes also referred to deploying the weapon in push-stun mode to the upper back and shoulder area, for a total of four deployments.

He was asked whether he panicked his notes and statements were wrong because he did not have a good recollection of events. He answered, “Actually, I do, and like you said, I made some mistakes in the statement, but my overall recollection I think was good.”^⁵⁶

h. Post-incident discussions with the other officers

Cst. Millington said that he and Constables Rundel and Bentley were told to return to the Airport sub-detachment to await arrival of the IHIT investigators, which they did. He was asked about any discussions they had:

Q Did the three of you discuss at all what you had seen and heard relating to Mr. Dziekanski prior to the time you sat and gave your statement?

He agreed that in late October 2007 the four officers participated in a critical incident debriefing session. He disagreed with the suggestion that each of the officers explained to each other what they had done in the incident. “No. We discussed with the psychologist with regards to how we were feeling with regards to the end result.”^⁵⁸

He told me that about five weeks after the Dziekanski incident he was transferred out of the Airport sub-detachment. During those five weeks he worked some shifts with the three other officers, but he never discussed the incident with any of them and never overheard them discussing it, even after the Pritchard video became public. Since his transfer he has had no discussions with any of them about the incident.

i. Completion of the conducted energy weapon usage report

Cst. Millington told me that he completed the RCMP’s Conducted Energy Weapon Usage Report (Form 3996) on about October 18 or 19, 2007. The summary portion of the report included the following:

Initial Dispatch Information: Complaint of a male throwing luggage around and throwing chairs through windows. At time of arrival, members approached the male who was yelling and standing on the secure side of the arrivals area. The male had destroyed a computer and had damaged Airport property on the secure side. The male did not speak English and was moving around erratically and would not listen to members who used hand signals to attempt to get the male to calm down. When members got closer to the male, he stepped back and away. The male then deliberately knocked items off of a desk nearby and grabbed an office stapler. The male swung the stapler wildly with his arm at the members. Cst. MILLINGTON unholstered the CEW and pointed it at the male subject. The male was not apprehensive upon seeing the CEW. The male raised the stapler in one hand and raised the other fist. The male then aggressively moved towards members on scene. Cst. MILLINGTON recognized the male’s behaviour had escalated from resistant to combative, and deployed the CEW. The CEW was deployed once for the full 5 seconds, which stopped the male from moving, but he continued to walk towards members with his arms raised once the cycle was completed. Cst. MILLINGTON cycled the CEW a second time, after which members were able to wrestle the male to the floor. The male was still struggling at this time and Cst. MILLINGTON cycled the CEW again. However, the CEW electrical impulse was audible, which meant that at least one of the probes were not attached. Cst. MILLINGTON took the cartridge off of the CEW and used the push-stun mode on the man’s rear deltoid (upper back) area. At this point, members were able to control the male and get him into handcuffs. Cst. MILLINGTON then reloaded the CEW with a new cartridge and re-holstered the CEW.^⁵⁹

Cst. Millington agreed that several of the statements contained in the summary were inaccurate, including the following:

When it was suggested that the summary might give a distorted view of what happened, Cst. Millington replied, “There are errors in it, yes.”^⁶⁰ He agreed that those errors would cause someone to get an impression that might be different than what one might see on the Pritchard video. Cst. Millington maintained that when
Mr. Dziekanski picked up the stapler, had his fists raised and the stapler up, and advanced toward them, this was combative behaviour. He feared for the safety of the other officers and himself because he thought Mr. Dziekanski was going to attack. He deployed the weapon to stop the threat.

j. Post-incident reconsiderations of the officers’ actions

Cst. Millington was asked whether, in hindsight, he would have done anything differently:

Q Now, you’ve now had the benefit of hindsight and the benefit of the video. Would you have done anything differently?

A No. We acted in accordance to our training. Of course I never intended this result.

4. Corporal Robinson^⁶²

a. Responding to the call for assistance

Cpl. Robinson had just stepped out of the lunchroom when the dispatch call came in, but he heard it on his portable radio. Cst. Millington responded to it, but
Cpl. Robinson had no discussion with the three constables about who should attend. He told me, “When the call comes in, Constable Millington responded, so another member is going to go with him. Then a third member went and I went up as well just to oversee and to supervise.”^⁶³ They responded as though it were a Priority 2 call, meaning that it was a “hurry up and get there” call because it was an “in progress” call.

He told me that there was no discussion en route to, or on arrival at, the Airport about the call, or in response to the update that the subject was now throwing chairs through glass. He had no plan in his mind about what he would do with this call as he entered the Airport. When he was asked about the types of dispatches that would normally call for an operational plan, he said:

If you’re looking at plans, certain police responses demand a plan, whether it be a hostage taking, armed robberies, things that are happening in progress. Those are the types of calls that you’d actually have a plan for. And this call this evening was not one of them.^⁶⁴

Each officer drove his own vehicle, and Cpl. Robinson was the fourth officer to arrive. He was asked why he, as the most senior officer, did not take charge of the investigation. “I only step in if necessary. A lot of how the members are going to gain that experience is by dealing — interacting with people, and I only step in if I have to.”^⁶⁵

As he was moving through the public Meeting Area toward the swinging glass doors, Cpl. Robinson heard someone say words to the effect of “he only speaks Russian,” and he heard an Airport security person say words to the effect of “he’s freaking out.” He did not have any discussion with people in the area. He was intent on getting into the secure area to assess the situation, to observe the constables in their interactions, and to step in if necessary. Having heard that there might be broken glass, he stopped and put on his gloves. Around the time he jumped over the handrailing and approached the glass doors, he heard Cst. Bentley say to Mr. Dziekanski, “How’s it going, bud? How you doing, sir?” He denied the suggestion that the officers “entered like a SWAT team” or that it was a “cowboy entrance.” They had to hop over the railing, or otherwise walk all the way around the railing.

b. Entering the secure area

Cpl. Robinson said that as he entered the secure area his attention was focused on
Mr. Dziekanski and the other three officers. He was not aware of anyone else being in the immediate vicinity. He saw a damaged computer terminal on the ground, but did not see any broken glass. Mr. Dziekanski was standing inside the glass doors with the other members — he was not throwing or breaking anything.

Although he could not hear any conversation about a passport or identification,
Cpl. Robinson saw Mr. Dziekanski turn and reach down toward the luggage. He considered that to be a potentially dangerous situation to the other officers, because it was unknown what was in the luggage. In this type of situation, the best thing to do is have the individual step back and have the officers look at what the individual was going for. Consequently, Cpl. Robinson stepped in and took charge. He put his hand out and said, “No. Stop.” He told me that Mr. Dziekanski stopped going toward his luggage and was thus complying with his direction. He made a motion for
Mr. Dziekanski to calm down, and then pointed with his finger and motioned with his hands for Mr. Dziekanski to put his hands on the counter. He told Mr. Dziekanski to calm down and to put his hands on the counter, although he realized that
Mr. Dziekanski would not understand. Mr. Dziekanski threw up his hands and took a step back. Cpl. Robinson started moving around to reposition himself, to get
Mr. Dziekanski to put his hands on the counter.

Cpl. Robinson agreed that at one point in the video it is possible to see the stapler on the counter. He insisted that he pointed at the counter, but did not point in the general direction of the stapler.

c. Deployment of the conducted energy weapon

Mr. Dziekanski had transitioned around quickly and raised his voice louder.
Cpl. Robinson saw that Mr. Dziekanski was clenching a stapler in his fist, and his other fist was down. Mr. Dziekanski made motions with his fist, and a couple of staples discharged. Cpl. Robinson said that this was combative behaviour, which under the RCMP’s Incident Management/Intervention Model (IM/IM), justified use of a baton. He continued:

And I had taken a step back and he walked, or he took a step forward with the clenched fist, and he took a step forward and at that point I had drawn my defensive baton. I pulled it out but I did not extend it. And so I had my defensive baton.

Constable Millington was off to my right. The other members had transitioned off to my left, and in what order, I don’t know. So when he did that, or when he grabbed the stapler, the members pulled off this way around me and Constable Millington was to my right. I had my defensive baton out and when he took the step forward, that’s when I gave Constable Millington the command to deploy the TASER. And at that point the TASER was deployed.^⁶⁶

Cpl. Robinson identified a point on the Pritchard video (3:45) where he stepped back, but acknowledged that it was a “very slight movement.”^⁶⁷ It would not have been appropriate to step back farther (e.g., 10 feet) because they had Mr. Dziekanski contained, and given the escalation of his level of violence, the officers had a duty to keep him contained in order to protect themselves and the public. A viewing of the video (3:47) shows that Cpl. Robinson pulled out his baton (but did not snap it in order to extend it) and held it up at head level. Cpl. Robinson decided that it was preferable to have Cst. Millington deploy the conducted energy weapon rather than use his own baton, because the conducted energy weapon can give instantaneous control and creates less risk of injury to the subject. In his view, Mr. Dziekanski did not afford them an opportunity to say, “Put it down” or to give the TASER warning before deploying the weapon, given his combative nature, grabbing the stapler, and taking a step forward.

Cpl. Robinson told me that he said to Cst. Millington words to the effect of “Kwesi, hit him with it,” but it was deployed before he had time to say, “TASER, TASER.”

Cpl. Robinson told me that the first deployment did not have the instantaneous effect it should have had, based on his previous experience. Mr. Dziekanski had not gone down and was still holding the stapler. He gave the command to deploy the weapon again (before Mr. Dziekanski fell to the ground), but he does not know if
Cst. Millington heard him or if the weapon was deployed a second time.
Mr. Dziekanski moved to Cpl. Robinson’s left and then fell to the ground in a tripping motion, at which point Cpl. Robinson moved in behind him to try to control him.

Cpl. Robinson was referred to 4:13 of the Pritchard video, where “Hit him again, hit him again” is heard. He would not rule out that those were his words but, if they were, it must have been a third command, because he made the first two commands before Mr. Dziekanski fell to the floor (at 3:55). If he did give a third command, it was justified because Mr. Dziekanski was able at certain points to push himself back up. He explained, “At that point, if we’re losing control of him, the use of the conducted energy weapon is appropriate.”^⁶⁸ Cpl. Robinson told me that he did not consider that Mr. Dziekanski’s attempts to push himself back up might have been an attempt to breathe or in response to the pain from the weapon.

Cpl. Robinson said that he was aware from his conducted energy weapon training that there were risks associated with deploying the weapon continuously without a break for 15 to 20 seconds.

d. Restraining Mr. Dziekanski

Cpl. Robinson said that when the officers attempted to put handcuffs on,
Mr. Dziekanski resisted by pulling away, pulling his arms in and kicking. It required concerted effort by both him and Cst. Rundel to get one of Mr. Dziekanski’s arms in position to be able to put the handcuffs on. When asked to compare Mr. Dziekanski’s resistance to other subjects he has handcuffed, he stated, “I would rank him as one of the hardest people I’ve ever had to arrest or put the handcuffs on, as far as strength goes at that time.... His ability to resist was very extreme.”^⁶⁹

Cpl. Robinson was asked whether, in attempting to restrain Mr. Dziekanski, he placed his knee on the back of Mr. Dziekanski’s neck. He denied doing that. He placed his knee across Mr. Dziekanski’s shoulder blades, in accordance with his training. Doing so is safer than placing a knee on the neck, and it is also more effective, in that it prevents subjects from rolling over or picking themselves up. He estimated that he has used this technique more than 50 times while on duty. He has never seen a subject expire, suffer serious injury, or go unconscious from using this technique.

Cpl. Robinson was shown a 24-second segment of the Pritchard video (5:10–5:34), which shows him kneeling near Mr. Dziekanski’s head, with his left leg on the floor near Mr. Dziekanski’s back, and his right leg and/or knee on or near Mr. Dziekanski’s neck. When asked whether this did not show that his right leg and/or knee were on Mr. Dziekanski’s neck, he repeatedly asserted, “I know where my knee was and it was nowhere near his neck,” and “I didn’t apply pressure to the back of the neck.”^⁷⁰

He told me that after Mr. Dziekanski was handcuffed, he instructed Cst. Rundel to go out to his vehicle and retrieve hobbles. He did this because of Mr. Dziekanski’s kicking and struggling. Even after he had been cuffed, it did not seem that Mr. Dziekanski was slowing down.

e. Attending to Mr. Dziekanski

Cpl. Robinson said that after Mr. Dziekanski went unconscious, he rotated him into a modified recovery position. He could not be placed into a total recovery position while handcuffed.

Cpl. Robinson told me that he was aware that Mr. Dziekanski’s ear (not his face) turned blue. He knew, from his first aid training, that this could be a medical issue of breathing or bruising. Since Mr. Dziekanski was breathing, he assumed it was caused by bruising. By then, Code 3 had already been called. Later in his testimony he said, “I didn’t know if it was bruising or breathing, but we called the ambulance.”^⁷¹
Cpl. Robinson was referred to his October 14, 2007, statement to an IHIT investigator in which he said, “... because it was almost like, during the struggle, it’s almost like he was getting a blue discolouration.”^⁷² He agreed that this was inaccurate — he saw that the ear was blue after he rolled him into the partial recovery position, but did not see it turning blue during the struggle.

He told me that after Mr. Dziekanski was handcuffed, he constantly monitored his breathing until the Richmond firefighters arrived. He did this by placing his hand on Mr. Dziekanski’s chest, observing his mouth for breathing, and by placing his head close to Mr. Dziekanski’s head so he could hear his breathing. Initially he heard what he thought was snoring, which alerted him to the fact that Mr. Dziekanski was unconscious. He also checked Mr. Dziekanski’s pulse a couple of times, after
Mr. Enchelmeier had checked it. He told me that he removed his gloves each time before checking the carotid pulse and that his bare hand can be seen on the Pritchard video (third segment) at 0:06.

f. Arrival of the Richmond firefighters

Cpl. Robinson told me that he had Mr. Dziekanski in a modified recovery position and was kneeling behind Mr. Dziekanski’s back when the Richmond firefighters arrived. He had no recollection of refusing the firefighters’ request that the handcuffs be removed, although he might have done so. He acknowledged that he was reluctant to remove the handcuffs, given the nature of the call (that Mr. Dziekanski was combative, had damaged property, and was potentially violent against the officers). In his experience, he had seen subjects regain consciousness and come up swinging, almost in fight mode.

Cpl. Robinson was referred to the testimony of Richmond Fire Captain Graeme, to the effect that after he and Firefighter Cameron did an assessment of Mr. Dziekanski before the arrival of the ambulance paramedics, his view was that Mr. Dziekanski was dead. Cpl. Robinson told me that he had no recollection of Captain Graeme telling him that — he first learned of Mr. Dziekanski’s death after the paramedics had dealt with him.

g. Arrival of the BC Ambulance Service paramedics

Cpl. Robinson said that when the ambulance paramedics asked for the handcuffs to be removed, he asked whether they could work on Mr. Dziekanski with the handcuffs on, and they said they would like them off. He agreed to remove them. He told me, “I believed he still posed a risk and for me to take them off — and I had told them that they have to be ready to step out of the way if he comes up swinging.”^⁷³

h. Accuracy of Cpl. Robinson’s notes and statements

Cpl. Robinson was referred to his October 14, 2007, statement to an IHIT investigator, in which he stated in part: “I remember him taking a step forward and then he was swinging the stapler ... up high and then he’s just like he’s swinging it um, to try to push us back or ah, an attempt to hit us.”^⁷⁴ With respect to the statement, “an attempt to hit us,” he agreed that he did not articulate it that well that morning. With respect to his reference “up high,” he was intending to refer to shoulder or chest height.

He was referred to passages in his statements where he told IHIT investigators that the officers had to wrestle Mr. Dziekanski to the ground. He told me:

I was mistaken but I was telling the truth. At certain points we did wrestle with him, but like I have on page 3, he did — he did drop to the ground. So the TASER did take him down, and I sort of blended the whole interaction with him and I was mistaken. But at the time I did the best job I could in articulating it.^⁷⁵

It emerged later in Cpl. Robinson’s testimony that on March 2, 2009, his lawyer wrote to the Commission, stating in part, “The officers did not take Mr. Dziekanski to the ground. Rather, they struggled with Mr. Dziekanski after he was on the ground. The struggle was to gain control and to ensure that Mr. Dziekanski remained on the ground.”^⁷⁶

He was referred to passages where he described Mr. Dziekanski as swinging the stapler. He agreed that he had been inaccurate:

A He swung but then he brandished it, and it wasn’t swinging initially. But I sort of blended the whole interaction and I was just trying to clarify it. But just because I was mistaken doesn’t mean I was lying. I did the best job I could at the time.

Q So if you said in your statement that he was swinging the stapler, are you saying that’s inaccurate?

Q Do you realize that in your statement you used the word “swinging” twelve times?

Later in his testimony, it emerged that Cpl. Robinson’s counsel’s March 2, 2009, letter to the Commission stated in part: “Rather than use the word ‘swing’ or ‘swinging’, Corporal Robinson feels that the word ‘brandish’ or ‘brandishing’ better captures the majority of Mr. Dziekanski’s actions with respect to the stapler.”^⁷⁸

... like he started snoring, so um, I said, I put him out, ‘cause I was the one positioned on the top of him? At that point I pulled off and ah, we, we positioned him almost in like the recovery position?^⁷⁹

He was asked whether his statement, “I put him out” indicated that he thought that he was responsible for Mr. Dziekanski losing consciousness? He disagreed, adding, “I was trying to draw the attention to the members that he’s no longer pushing up and he’s snoring, so the fact that he went out.”^⁸⁰ Cpl. Robinson was referred to another similar passage in his statement in which he used the expression, “I put him out,” and he again denied that he meant that he had rendered Mr. Dziekanski unconscious.

i. Post-incident discussions with the other officers

Cpl. Robinson told me that during the two-hour period after Mr. Dziekanski died and before the IHIT investigators arrived at the Airport (approximately 4 a.m.), he had no discussions with the other officers about the incident, other than directing them to get the names of witnesses so that they could be interviewed later.

He said that after IHIT investigators arrived at the scene, he instructed the three constables to return to the Airport sub-detachment to be interviewed. When asked whether he gave them any instructions, he said, “I would have given them the standard things of just don’t talk about it. Wait till after you give your statements to IHIT.”^⁸¹

He told me that although he worked at the Airport sub-detachment with the other three officers for five weeks after the incident, he had no discussions with them about the incident (other than during the critical incident debriefing session) and has had no discussions with them about the incident since then. He had no recollection of discussing, at the critical incident debriefing session, any material facts relating to the incident.

j. Post-incident reconsiderations of the officers’ actions

Cpl. Robinson was asked how he now felt about the events as they unfolded that night:

A The events — like this is a tragic thing that happened and it saddens me any time I have to look at them. This has been the hardest last couple of months to go through this. And you know, this should not have happened. No one should have passed away. And its not — it’s not where — every day doesn’t go by where I think about this and replay this through my head. And then having to sit here and go through the video, yes, it’s one of those things that’s really hard to keep together. But it’s just been a very difficult time. But this never should have happened.

Q With that comment in mind — this should have never happened — is there anything that you did, from your perspective, that contributed to this event that you can see?

Cpl. Robinson was asked what he meant when he said, “[T]his never should have happened.” He responded that he did everything consistent with his training and they called an ambulance, but Mr. Dziekanski should not have died. He added that there was no reason for Mr. Dziekanski to pick up the stapler, and the autopsy report was inconclusive as to the cause of death. The officers all responded based on
Mr. Dziekanski’s behaviour, and there was nothing that they could have done differently.

5. Staff Sergeant Douglas Wright

Staff Sergeant Douglas Wright was the officer-in-charge of the Vancouver International Airport sub-detachment of the Richmond RCMP detachment. He testified that at about 2 a.m. on Sunday, October 14, 2007, he received a phone call at home from Cpl. Robinson, who was still at the Airport. Cpl. Robinson advised him that there had been an incident at the Airport in which a conducted energy weapon had been deployed, that the subject was in serious medical distress, and that BC Ambulance Service paramedics were attending to him. There appeared to be a serious issue as to whether the subject was going to survive. Cpl. Robinson used the term “excited delirium” in relation to why the weapon was deployed.

Cpl. Robinson told him that they had received information before their arrival that the subject had been throwing chairs and computer screens around. He described the subject as being agitated, uncooperative, and non-compliant.

Staff Sgt. Wright told me that he had a second phone conversation with Cpl. Robinson at 2:11 a.m. Cpl. Robinson asked for advice about what to do with a civilian witness who had videotaped the event. Staff Sgt. Wright told him to hold the witness and the tape and, when the Integrated Homicide Investigation Team arrived, turn them over to IHIT. He added:

A ... I also provided him direction to tell the members — because I recognized at that time that they were going to be part of this investigation as witnesses to this event — that to provide direction to the members that they were to not interact with any other witnesses or themselves, to sit — basically what I said was to have them sit down, shut up, and make notes, and not talk to one another or talk to anybody else. That they were going to have to account for what it is that had happened and they needed not to compare or exchange information with one another because they were going to be the investigation....

Q With respect to the making of notes, did you give Corporal Robinson any indication as to what type of notes should be made?

A I suggested he should make extensive notes, or excellent anyways is what I have here.^⁸³

Staff Sgt. Wright testified that he had recently reviewed the notes that Cpl. Robinson made of the incident. In his view they were very short and not up to his standard of “excellent.” Officers have a duty to report, and he would expect that there would have been more notes than what there were.

He told me that the four officers continued to work together on the same shift at the Airport sub-detachment for two or three weeks after the incident, before being transferred. He checked with them regularly to determine if they were all right, but had no discussions with them about the incident itself.

6. Chief Superintendent Bent’s November 5, 2007, e-mail

On June 16, 2009, three weeks after the last witness at our evidentiary hearings testified, and three days before closing oral submissions were scheduled to begin, Commission Counsel received disclosure from counsel for the Department of Justice of a potentially significant e-mail.^⁸⁴

The November 5, 2007, e-mail (Exhibit 177) was written by Dick (Richard) Bent, Chief Superintendent, Deputy Criminal Operations Officer, RCMP, “E” Division. It was addressed to Al Macintyre, Assistant Commissioner, Criminal Operations Officer, RCMP, “E” Division. The e-mail referred to Superintendent Wayne Rideout, the officer in charge of the RCMP’s Integrated Homicide Investigation Team that was conducting the criminal investigation into Mr. Dziekanski’s death. It stated:

Al, spoke with Wayne Rideout today about our strategy for the release of the video. He had a couple of concerns. First, he didn’t think we should be providing any explanation for what was transpiring but instead just say the Inquest will take evidence under oath etc. I went through the rationale and said we need to have an explanation otherwise our detractors will put their own spin.

Second, as we’re going to have someone speak to this, he suggested that it should be someone other than Dale Carr otherwise we may lose the perception of independence. He would rather have someone separate from IHIT do this. We both think a Use of Force expert would be ideal. Gregg Gillis has not been involved in this investigation so is independent. I suggest we have Gregg do the narrative of what is happening.

Finally, spoke to Wayne and he indicated that the members did not articulate that they saw the symptoms of excited delirium, but instead had discussed the response en route and decided that if he did not comply that they would go to CEW. He has asked investigators for a synopsis and should have it by noon tomorrow.

The word “members” in the last paragraph of the e-mail refers to the four RCMP officers who dealt with Mr. Dziekanski at the Vancouver International Airport, and “CEW” refers to a conducted energy weapon, commonly referred to as a TASER.

When this e-mail came to light, I stated on the record that the delay in disclosing it was appalling. When the evidentiary hearings reconvened more than three months later on September 22, 2009, I stated:

On its face, the e-mail appears to tell a significantly different story from the testimony I had already heard from the four RCMP officers. From their testimony, it is open to me to conclude that they had no discussion with each other while en route to the Airport, they did not develop a plan of action before arriving at the Airport, [and] the conducted energy weapon was deployed in accordance with RCMP policy and their training.

However, the e-mail, if accurate, suggests that the officers did have discussions with each other while en route to the Airport, they did formulate a plan of action before arriving at the Airport, [and] they were contemplating deployment of the conducted energy weapon if Mr. Dziekanski did not comply, which might not be in accordance with the RCMP policy and training.

Because of the significance of the new evidence at our June 19, 2009, hearing, I accepted Commission Counsel’s recommendation that closing arguments scheduled to commence that very day be adjourned until today and that in the interim a thorough investigation be carried out into the circumstances surrounding the writing of this e-mail.^⁸⁵

As requested by Commission Counsel, the entire RCMP investigation file and other records originating from, received by, or in the possession of the RCMP or any civilian member of the RCMP relating to the Dziekanski matter were disclosed — approximately 18,000 documents. Based on the Commission’s review of those documents, Commission Counsel called three witnesses to testify about the Bent
e-mail, whose testimony I will now summarize.

a. Chief Superintendent Richard Bent

Chief Superintendent Richard Bent told me that Mr. Pritchard had initiated a court proceeding in the preceding days to have his video of the Dziekanski incident returned to him. The RCMP had decided to return the video to him within a few days, and quite a bit of time was spent at “E” Division Headquarters developing a communications strategy. From his viewing of the Pritchard video he realized that when it became public, viewers would feel that the RCMP officer deploying the conducted energy weapon had done so very quickly.

On the morning of November 5, 2007, Chief Superintendent Bent had an impromptu meeting with Deputy Commissioner Bass and Assistant Commissioner Macintyre respecting the media strategy. During that meeting, Chief Superintendent Bent mentioned the recent change in RCMP national policy respecting the use of conducted energy weapons with individuals displaying symptoms of excited delirium. Deputy Commissioner Bass asked what the four officers had said about what had happened. Chief Superintendent Bent realized that he had not seen any synopsis from the officers of why they responded the way they did, and it was important to get that accounting in order to develop the RCMP’s media strategy surrounding release of the Pritchard video.

Following that meeting, Chief Superintendent Bent sent an e-mail at 10:01 a.m. to Chief Superintendent Dale McGowan, Operations Officer for the Lower Mainland district (which included the Richmond detachment) that stated (Exhibit 176):

Dale, as I understand it we expect the video to be released later this week. We were talking about our communication strategy and want to get our powder dry.

Can we get a synopsis of what the members’ accounts were. Especially, why the CEW member went to TASER right away. The explanation is important in this case.

I know IHIT is a bit strapped but it’s important that we have an update by mid-day tomorrow if possible.

Chief Superintendent Bent then went into a meeting that lasted the rest of the morning. He then had a phone conversation with Supt. Rideout, who had apparently been briefed by Chief Superintendent McGowan on the request for a synopsis. Soon after that conversation, at 1:46 p.m., Chief Superintendent Bent drafted his e-mail to Assistant Commissioner Macintyre (quoted earlier), reporting on his phone conversation with Supt. Rideout.

Chief Superintendent Bent told me that the main thrust of his conversation with
Supt Rideout dealt with what the RCMP response should be once the Pritchard video was released. Those matters are dealt with in the first and second paragraphs of his e-mail. He added:

And then the third paragraph deals with — goes back to the original question I asked. And the reason we’d asked that was we wanted an explanation from the members, an accounting of why they took the action they did with
Mr. Dziekanski. That was important for us in developing our media strategy. So that was in answer to that....

And it — and again, my discussion with Superintendent Rideout was specifically did the members make any comment about noticing symptoms of excited delirium, and again, that was the term that we were using at that time, and whether that was part of their accounting, or their reasoning for using the CEW. And in fact, Superintendent Rideout indicated that he not — they had not indicated that or articulated that. And through our conversation, as best I recall, that was what he did tell me and I recorded that in that third paragraph.^⁸⁶

Chief Superintendent Bent was asked about his recollection of his conversation with Supt. Rideout, and about the accuracy of the statements in his e-mail:

A I think it reflects what I intended to say. Again, the context was primarily the issue of the media strategy and what the members had said as it played into that. I don’t have a specific recollection of exactly the detail that Superintendent Rideout gave me either with respect to what his thoughts were with the media strategy that we had contemplated or with respect to the members’ accounting. I don’t have a really clear recollection of that. As I say, it was a year and half later that the e-mail came to light again and I — it was one in amongst many other things that were going on at the same time.

Q Is there anything you wish to correct about this e-mail you wrote to your superior officer?

A No. I believe that what I would have written here is what I believed was — accurately reflect the conversation I had with Superintendent Rideout....

Q Are you confident you did your best to record accurately what you were told by Superintendent Rideout?

A Yes, certainly. These are serious matters we don’t take lightly, so yes, I would have —

Chief Superintendent Bent told me that he never received the synopsis referred to in the e-mails. As things turned out, they did not need the synopsis for the media strategy. Given the verbal information he had received from Supt. Rideout about the members’ accounting, they did not feel that they were going to use that information in any public statements when the Pritchard video was released.

He agreed that, in spite of his exhaustive search for documents, he was not aware of any other notes or reports suggesting that the officers had developed a plan while en route to the Airport. He had no subsequent conversations with Supt. Rideout about his (Chief Superintendent Bent’s) interpretation of the gist of their phone conversation, or as to the sources of it. The primary purpose of his original question had been to develop a media strategy, and he did not pursue the other issue any further. As far as he knows, Supt. Rideout never received a copy of the Bent e-mail. He agreed that he certainly could have misunderstood parts of what Supt. Rideout said about the officers developing a plan en route to the Airport.

b. Assistant Commissioner Al Macintyre

Assistant Commissioner Al Macintyre told me that he is second-in-command in British Columbia and is the officer in charge of Criminal Operations, overseeing all operational activities. He typically receives 100–200 e-mails a day. After he has dealt with an incoming e-mail, he will often delete it. He does not delete his outgoing
e-mails — they are stored in his computer for 90 days, and then they are automatically archived in the RCMP’s main server. He conducted an exhaustive search for documents relating to the Dziekanski incident and recovered 3,546 documents.

He said that when he searched his e-mail files, he did not recover the Bent e-mail. Since it was an incoming e-mail sent only to him, with no file number on it, containing hearsay information, he likely read it and then deleted it. He testified that he had no recollection of receiving the Bent e-mail and had no recollection of answering it, forwarding it, or taking any steps in response to its contents. He agreed that he never received any other information that might indicate that the four officers discussed their response en route to the Airport.

He agreed that a review of his e-mail records of the Dziekanski incident shows that he received or sent e-mails for just about every day during the first three months of the investigation, but there was a gap in the outgoing e-mails between November 1 and November 8, 2007 (with the Bent e-mail being dated November 5, 2007). He had no explanation for that gap, and the RCMP’s informatics and forensic teams could not assist. However, some of his incoming and outgoing e-mails during this time period were recovered from other officers’ e-mail records.

c. Superintendent Wayne Rideout

Superintendent Wayne Rideout testified that he recalled having a phone call with Chief Superintendent Bent on November 5, 2007, in which they discussed the strategy for release of the Pritchard video. He told me that he made a note of the conversation, which he read into the record as follows:

1:45 p.m. on the 5^th of November. Phone to Chief Superintendent Bent. Media issue YVR. IHIT should not do “play by play” following release of YVR video. Optics inconsistent with independent review. He will advise.^⁸⁸

He added that there is a line in his notes that says, “Meeting with MROs scheduled for tomorrow.”

He was not aware of the existence of the Bent e-mail until he saw it for the first time in June 2009. The first two paragraphs accurately reflect their discussion. With respect to the sentence in the third paragraph that says, “but instead had discussed the response en route and decided that if he did not comply that they would go to CEW,” he testified:

Chief Superintendent Bent is a highly respected member of the RCMP. He occupies an extremely demanding role within this region. He is someone that I personally respect a great deal. But the way he has portrayed my comments to him in that passage that I read out is wrong.^⁸⁹

Supt. Rideout said that IHIT found absolutely no evidence to indicate that the four involved members had any plan to deploy the CEW or made any plan collectively while en route.

C. RICHMOND FIRE-RESCUE

At 1:34 a.m. on October 14, 2007, the No. 4 Hall of Richmond Fire-Rescue received a dispatch to attend at the International Arrivals level at the Airport in relation to a 40-year-old male who had collapsed. Captain Kirby Graeme was in charge, and he assigned Firefighter Brent Kopp as driver, Firefighter Glen Cameron as backup, and Firefighter Sonia Duranleau as first responder designate, which meant that she had the responsibility to attend first to the patient and perform the first analysis of the patient.

The No. 4 Hall is located at, and provides service to, Sea Island. The Airport is at the outer limits of the No. 4 Hall’s service area. The usual response time to the Airport, with traffic congestion on Russ Baker Way and Miller Road, is seven or eight minutes. In this case they were directed to respond Code 3, which meant that lights and siren were activated, and they reached the International Terminal building in about six minutes because of the light traffic.

The driver (Kopp) remained with the truck, and Captain Graeme led the other two firefighters into the International Reception Lounge. Captain Graeme told me:

A Across the way there was some Mounties standing by, and I could see when I got in there was people with security type jackets on.

A Well, generally if it was from here to the back of the room, they — I — you could see them just standing. And the same with the security people, they were just standing. Nobody seemed to be doing anything.^⁹⁰

Captain Graeme later said that, from the time the firefighters arrived until the second BC Ambulance arrived, the four RCMP officers “were standing by, it looked like three on one, three together and then one guy standing alone. They weren’t — they were not assisting the patient in any way.”^⁹¹ The three officers standing together were about 10 metres away from Mr. Dziekanski, and the officer standing alone was about five metres away. He was asked to describe his reaction. He said that he saw it as being unprofessional: “To see a patient face down, handcuffed and not being tended to in some way, shape or form, I thought something’s not right here.”^⁹² He did not see a Securiguard employee kneeling down and checking Mr. Dziekanski’s carotid pulse.

Firefighter Duranleau told me that when she first entered the International Reception Lounge, she saw the patient lying down on his chest in the prone position, flat to the ground, face down on the right, and looking up on the left, with his hands handcuffed behind his back.^⁹³ There were some RCMP officers and some other people about 10-15 feet away. No one was touching the patient.

Firefighter Cameron told me that when he entered the International Reception Lounge, he saw Mr. Dziekanski lying on his stomach, with his face turned to the left, with his hands cuffed behind his back. Two or three RCMP officers were standing by Mr. Dziekanski’s feet, but there was no one at his head. He agreed that when he arrived what he saw was a scene where people were not showing a lot of concern about Mr. Dziekanski’s health or the danger of him dying. He said that positioning
Mr. Dziekanski’s head to the left was good, in order to keep the airway open and reduce the risk of choking on vomit. He told me that the reference in his October 27, 2007, written statement to the IHIT investigator to Mr. Dziekanski being in the recovery position was not accurate, but added, “He was in the best position that he could have been in for being in handcuffs.”^⁹⁴

Captain Graeme agreed that if someone reported that the patient’s skin had gone blue, or that the patient made snoring sounds, that would indicate that the person was monitoring the patient. He also agreed that if the officers upgraded the ambulance call from routine to Code 3, which would suggest that the patient was being monitored and that there had been a dramatic change in the patient’s condition.

Captain Graeme told me that Mr. Dziekanski was lying on his stomach in the prone position, with his face looking left, his hands cuffed behind his back, and his legs extended straight behind him — he was not in the recovery position. He was motionless, he was pale and his eyes were open but not moving. He was unresponsive to the firefighters’ verbal commands and the application of pain stimulus. As part of Captain Graeme’s scene assessment, he had to ensure that the scene was safe for his crew. He asked one of the RCMP officers (he thought it was the Black officer, i.e., Cst. Millington) what had happened, and was told, “We TASERed him, and there was no response, nothing happened. So we TASERed him twice more and he’s been face down.”^⁹⁵

According to Captain Graeme, one RCMP officer (he thought it was the Black officer) told him that Mr. Dziekanski had been down for a few minutes before their arrival,^⁹⁶ and an officer (he did not remember who) told him that they had been monitoring
Mr. Dziekanski since he was hit with the TASER. He understood “monitoring” to mean checking on consciousness and breathing, and ensuring that Mr. Dziekanski did not drown on his vomit.

Captain Graeme had no concerns about his team’s safety. He told one of the police officers (he was not sure which officer) that they needed to take the handcuffs off in order to properly assess the patient, but the RCMP officer replied, “He’s been violent. We’re not going to take the cuffs off.” Captain Graeme told me that this frustrated him, because it is very difficult to do a proper assessment of a patient in
Mr. Dziekanski’s position:

To properly assess our patients we — we put them in — we roll them onto their backs and now we can make sure that they have clear airways. We can see that they can have a rise and fall of the chest, if they’re breathing correct — if they’re breathing efficiently. It’s easier to assess them properly. Also if we need to do any type of CPR, then now they’re in the right position, on their backs.^⁹⁷

As a result, Captain Graeme instructed Firefighter Duranleau to begin her assessment of the patient. Firefighter Duranleau spoke to the patient, but got no response. She told me that one of the RCMP officers told her that the patient would not understand because he was Polish. She then squeezed the bones in the neck area as a pain stimulus check, but again got no response. She put her ear beside his mouth and watched his chest for signs of movement, but did not feel or hear anything. She then attempted to assess a radial pulse (which was difficult to do because of the handcuffs), but could not find any pulse, at which point Firefighter Cameron asked one of the RCMP officers if they could remove the handcuffs, and the officer responded that the patient was acting violently so they didn’t want anybody else to get hurt. She then checked the patient’s carotid pulse. Her assessment was that Mr. Dziekanski was unconscious, was not breathing, and had no pulse. She told me that she had no personal concern that Mr. Dziekanski was a threat to her safety. She did not receive any information from the RCMP officers or from Captain Graeme about
Mr. Dziekanski’s condition before she arrived, and was not told that he had turned blue or that a conducted energy weapon had been deployed against him multiple times.

Firefighter Cameron told me that he observed Firefighter Duranleau taking
Mr. Dziekanski’s radial pulse. She told him that she did not get a pulse, so he directed her to take a carotid pulse. While she did that, he put his face near Mr. Dziekanski’s face to see if he was breathing. He did not feel any breathing, and Firefighter Duranleau reported no carotid pulse. Firefighter Cameron did not check either the radial or carotid pulse, but did try a pain stimulus on Mr. Dziekanski’s neck to test for his level of consciousness, but he was unresponsive. He was concerned about
Mr. Dziekanski not breathing and wanted to get him onto his back in case they had to perform CPR or use the automated external defibrillator. He told me that he told one of the RCMP officers that he needed the handcuffs off right away because he didn’t feel any breathing, and then added, “They indicated to me that he’d been quite agitated and was causing quite a commotion that they didn’t want to take the handcuffs off him.”^⁹⁸

About 90 seconds after the firefighters arrived, the first BC Ambulance Service paramedics (basic life support^⁹⁹) arrived. Captain Graeme explained to them that
Mr. Dziekanski had been hit with the TASER three times. The paramedics told the RCMP officers emphatically that they needed to have the handcuffs removed in order to assess the patient properly. One of the RCMP officers removed the handcuffs.

When the paramedics rolled Mr. Dziekanski over, Captain Graeme observed that
Mr. Dziekanski had urinated through his pants. He looked very pale, with waxy-looking skin, and he had no colour in his face. He told me that he thought that Mr. Dziekanski was in cardiac arrest. And later added, “I didn’t think that he was alive.”^¹⁰⁰ The paramedics began their protocols, Firefighter Duranleau (at the paramedics’ direction) started to do compressions, and Captain Graeme prepared the automated external defibrillator. The paramedics put the defibrillator on, but the device announced “no shock advised.” Captain Graeme explained to me that when the defibrillator is activated it will go through a sequence to determine whether it should shock the patient to restore the heart rhythm — it will only apply a shock in the case of two rhythms, ventricular tachycardia and ventricular fibrillation. The “no shock advised” reading was consistent with Mr. Dziekanski having no heart rhythm at all (i.e., asystole).

Captain Graeme told me that about one minute after the arrival of the first
BC Ambulance Service paramedics, an advanced life support team from the
BC Ambulance Service arrived. Firefighters Duranleau, Cameron, and Kopp did chest compressions on Mr. Dziekanski, on two-minute rotations for 20-25 minutes, until one of the advanced life support paramedics instructed them to stop, when the paramedic pronounced death after talking with an emergency department physician at Richmond General Hospital.

Captain Graeme was asked about the Airport’s Emergency Response Service. He said that he was surprised that they did not attend this call. Since they are only 800 metres away (as opposed to the No. 4 Hall being four kilometres away), they always arrive first. He added:

The ERS staff, the firefighters out there, have been at every medical call that I’ve ever been to. They’re there before we get there. A lot of times we wonder why we’re even sent, because they’ve done all their assessments of the patients, got them onto — on oxygen and done everything that we would have done, only they’ve saved us — they would have saved us a trip. So they are at all medical calls that I’ve gone to at YVR.^¹⁰¹

Firefighter Cameron told me that he has been involved in over 100 Code 3 calls to the Airport — just about all the time, the Airport’s Emergency Response Service reaches the scene before the firefighters.

Captain Graeme was asked whether a delay in removing handcuffs affects survival rates:

Q And the amount of time that elapsed between the time you arrived at Mr. Dziekanski’s side and the time that the handcuffs were ultimately removed you stated was over a minute.

Q When you’re trying to administer medical care or save a victim’s life, is a minute a medically significant amount of time?

Q Do survival rates drop for every minute that passes without medical attention?

Captain Graeme agreed that there were several errors in the written incident report (Exhibit 13) he prepared after returning to the fire hall:

He was referred to Firefighter Cameron’s written statement to IHIT investigators, in which he stated, “Everything was fine. Everything was controlled and so, to me, it looked like the RCMP had done their job.” He disagreed with Firefighter Cameron’s statement.

D. BC AMBULANCE SERVICE

Two BC Ambulance Service units attended the scene at the Airport. The first unit to arrive brought two Basic Life Support paramedics, Allan Maciak and Mike Egli. The second unit brought two Advanced Life Support paramedics, Ronald Van Houten and Miles Randell.

1. Basic Life Support paramedics

Mr. Maciak told me that they received the dispatch (a Code 3 for an unconscious patient) when returning to their station in South Richmond, and it took nearly 13 minutes to get to the Airport.^¹⁰⁴ On that shift, Mr. Egli was the driver and he was the attendant. When they arrived curbside, a security guard told them that there was a male inside who was being aggressive, the police had to use the TASER on him, and he was handcuffed just inside the door. The two paramedics entered the International Reception Lounge together, with the stretcher between them.

Mr. Maciak told me that as they walked across the lounge, Cpl. Robinson approached them and said that Mr. Dziekanski was being aggressive and throwing stuff, that they had to use the TASER on him and had laid him on his side and were monitoring his vitals. Mr. Maciak saw Mr. Dziekanski lying prone on his chest with his head tilted to one side. There were two or three RCMP officers and an Airport security man standing by Mr. Dziekanski’s feet. He saw three firefighters standing along the left side of
Mr. Dziekanski’s prone body. He saw Firefighter Cameron reaching down trying to assess a radial pulse, and he added:

It was obvious that, you know, his face — facial features, what you could see of his face, was bluish in colour and cyanotic. And so I asked Firefighter Cameron if this gentleman is breathing, and I don’t recall what he said. I don’t think he said anything at all. So at that point I got down and did my own assessment.^¹⁰⁵

According to Mr. Egli, when he entered the International Reception Lounge, three RCMP officers were standing 10–15 feet past Mr. Dziekanski. The closest one approached them as they entered. He saw three firefighters two to four feet to the right, down toward Mr. Dziekanski’s legs. He told me his initial impressions of
Mr. Dziekanski, while still 40–50 feet away:

When I first saw him, when the door opened and I looked in, I could see — see him lying on the floor. I could tell that he had his hands behind his back and he was very cyanotic. He looked to me to be in dire need and looked more lifeless than anything.^¹⁰⁶

In the handcuffed position, Mr. Maciak could not be sure if Mr. Dziekanski was breathing, so he asked Cpl. Robinson if he could remove the handcuffs because they needed to get him onto his back. Cpl. Robinson told him that the male had been quite aggressive. Mr. Maciak repeated that they really needed to get Mr. Dziekanski onto his back, and Cpl. Robinson removed the handcuffs. Mr. Egli told me that he had no concerns about Mr. Dziekanski regaining consciousness and fighting, and he also said to the RCMP officer, “We need the cuffs off now,” in a tone that he would expect it to be done.

The two paramedics rolled Mr. Dziekanski onto his back. Mr. Maciak said, “Oh, look at his colour.” Mr. Egli found that Mr. Dziekanski was not breathing and had no carotid pulse. He yelled at one of the firefighters, “Get the damn oxygen on him now, high flow, 15 litres on a non-rebreather mask.”^¹⁰⁷ Mr. Maciak testified:

A Closed. He was essentially cyanosed. His lips were blue. His tongue was at the front of his mouth. You could see it kind of protruding from the teeth a little bit. It was blue. He — incontinent with urine. Unresponsive. I don’t want to get too descriptive here to offend anybody.

Nevertheless, Mr. Egli inserted an oral airway, Firefighter Duranleau began chest compressions and Mr. Maciak set up the automated external defibrillator. When it analyzed the heart rhythm and advised no shock, they focused on CPR, and Mr. Maciak advised the Advanced Life Support unit that was en route that they had a cardiac arrest. He asked Cst. Millington about Mr. Dziekanski having been hit with the TASER, and Cst. Millington responded that they had cycled him three times. When the Advanced Life Support team arrived they took over, and Mr. Maciak provided support.

Mr. Maciak told me that normal respirations should be almost quiet. In the case of an unconscious patient, muscle control in the tongue may be lost, with the tongue falling back into the pharynx, blocking the airway. This may result in a snoring respiration. Students in basic first aid and CPR courses are taught two responses when they hear a snoring respiration — a jaw thrust and a head-tilt/chin-lift.

It’s a bluish colouration of the skin. It’s caused by cells and tissues not having enough oxygen, so that circulation process has been impeded somehow. The skin isn’t getting enough oxygen....

The body’s pretty smart. If it’s having trouble, it’ll sort of compensate and — to keep the vital organs running best. So you’ll usually notice it on the ears, the fingertips, first. And that can usually be corrected with a little bit of oxygen. By the time it gets to sort of central cyanosis in the lips and the tongue, you know, and the entire body, it’s pretty hard to reverse at that point. That involves an Advanced Life Support paramedic to usually help turn that around.^¹⁰⁹

Mr. Maciak said that, from beginning first-aid classes that teach the ABCs, students are taught that if you have a problem with A (airway), you resolve it before moving to B (breathing), and if you encounter a problem with breathing, you resolve it before moving to C (circulation). When he saw the firefighter assessing Mr. Dziekanski’s pulse, he assumed that A and B were fine because they had taken no critical interventions to deal with the airway or breathing.

Mr. Maciak agreed that in the two minutes between their arrival and the arrival of the Advanced Life Support team, he and Mr. Egli had been able to assess the airway, breathing, and circulation; begin CPR ventilation and chest compressions; and analyze once with the automated external defibrillator. He was asked:

Q Would the Richmond Fire Department firefighters have the training to take those steps and the equipment?

A They — the AED and CPR training they have is identical to what we have, yes.

Q So in the two minutes they were with the patient, they could have done all the things that you and your patient [sic] did before the Advanced Life Support arrived?

However, when subsequently asked whether the firefighters’ actions were appropriate, he said, “You know, I can’t answer for them. I really don’t know. Personally I would have liked to have seen something being done to Mr. Dziekanski, you know. Again too, I can’t comment on what they had time to do and what they didn’t have time to do.”^¹¹¹

Mr. Maciak was questioned about a statement he gave IHIT investigators on January 15, 2008, in which he stated:

The biggest shock came to me was that you know basically that the, you know the fire department was doing nothing. Like no critical intervention, no airway, no nothing, and it, and it was — not that it was obvious when he was in that position but as soon as you rolled him over you could tell then, it was pretty obvious he was lifeless. And, and in my, my first impression is you know he had been down for a little while, that this wasn’t something that just happened here.

Not to get centrally cyanose. Most people uh first will get periphery, peripheral cyanosis in their fingertips, maybe their ear tips, but he was centrally cyanose. His tongue, his lips, his whole face and chest were blue from lack of oxygen.^¹¹²

He agreed with the suggestion that what he was referencing in his testimony was that, given how Mr. Dziekanski appeared to him, he would have expected aggressive medical intervention at that stage, but saw none being performed.

Mr. Egli told me that, although he did not ask the firefighters why oxygen had not been started before their arrival, he was angry. “I was very upset of what I experienced when we first got there and I didn’t think it would be the best place to air it.”^¹¹³ He explained to me that, given Mr. Dziekanski’s condition (being as cyanosed as he was and lifeless), he was angry that no medical procedures were being done. He voiced his concern to several of his supervisors, and understood that one of them had talked to the Richmond Fire-Rescue staff about it.

2. Advanced Life Support paramedics

Mr. Randell told me that he was the driver that morning, and Mr. Van Houten was attending. When they arrived at the International Reception Lounge (about two minutes after the basic life support paramedics), Mr. Dziekanski was supine (i.e., lying on his back) and CPR was underway. He connected their manual cardiac monitor, which reported that Mr. Dziekanski was asystole, meaning that there was an absence of electrical activity in the heart. He said that asystole is the most difficult cardiac rhythm from which to recover a pulse — some jurisdictions will not even attempt resuscitation on someone who is in asystole, because the possibility of regaining a pulse is very, very slight if any at all. He said that it usually takes a patient in
Mr. Dziekanski’s situation between two to five minutes, or perhaps up to 10 minutes, to go from a profusing heart rhythm (i.e., a rhythm with a pulse) to asystole.

He told me that Mr. Dziekanski was quite pale, was incontinent, and appeared lifeless. He did not observe any cyanosis, but CPR had been underway for several minutes and that usually corrects cyanosis fairly quickly.

Nevertheless, Mr. Randell started to initiate intravenous treatment and medications, and Mr. Van Houten initiated endotracheal intubation, which involved passing a breathing tube into the lungs so that they could more efficiently ventilate and oxygenate the patient and, if necessary, give medications directly into the lungs. They followed the normal protocol for asystole, administering epinephrine (which causes the blood vessels in the periphery to contract and artificially increase the patient’s blood pressure) and atropine (which blocks some of the nerve impulses in the nervous system that may cause the heart to beat very slowly). Because Mr. Dziekanski was fairly young, they also administered sodium bicarbonate to make medications more effective and to counteract the acidosis that will occur when someone is not breathing and their heart is not beating.

Mr. Van Houten agreed that, given the circumstances before them, especially
Mr. Dziekanski’s initial heart rhythm being asystole, he did not expect that they would be successful in reviving him. He told me that after 20 minutes of resuscitation attempts, he consulted by phone with a Richmond physician, and she gave orders to discontinue resuscitation, at which point Mr. Van Houten pronounced Mr. Dziekanski dead.

Mr. Van Houten said that agonal breathing, which can arise in a pulseless patient, could sometimes sound like snoring. As the body moves into hypoxia (i.e., lack of oxygen), the patient can have seizure-like activity such as body spasms and leg kicking, which might resemble struggling.

E. EXPERT TESTIMONY

Following the evidence of the four RCMP officers who dealt with Mr. Dziekanski, I heard several witnesses give expert evidence on the following issues:

1. Video analysis experts

a. Grant Fredericks

Grant Fredericks worked in television between 1983 and 1987. In 1988 he joined the Vancouver Police Department and, as a constable, assisted the Investigations Division in the examination and processing of video evidence. In 1997, he became coordinator of the department’s Video Unit. In 2000 he left policing and joined U.S.-based Avid Technology’s Forensic Video Division, managing its forensic video development business for seven years. Since 2006 he has operated a forensic video analysis consulting business. He is an instructor at the FBI National Academy, an advisor to the International Association of Chiefs of Police, a panel member for the U.S. National Institute of Justice, an adjunct instructor for the University of Indianapolis, and principal instructor for the non-profit Law Enforcement and Emergency Services Video Association. More than 60 U.S. and Canadian courts have accepted him as an expert witness in forensic video analysis.

I accepted Mr. Fredericks as an expert in forensic video analysis. I was not prepared to qualify him in photogrammetry, because it appears that different experts use this term in quite different senses. I do accept his expertise in various aspects of photogrammetric measurement, such as digital compression technologies and image stabilization techniques. He described what he does this way:

I’m using observation, I’m using scientific tools, I’m using my understanding of television engineering and compression, and image analysis to form an observational opinion and then to support that with a validated measurement of the number of pixels.^¹¹⁴

From Mr. Fredericks’ expert report (Exhibit 158) and his testimony during the evidentiary hearings, I understand that there were three elements to his analysis. First, the Pritchard video posed challenges for him because of its relatively low-quality resolution, Mr. Pritchard’s movements while filming the incident, the shakiness of the images due to the camera being hand-held, and the zooming in and out while filming. Using several techniques, including a reverse projection process, Mr. Fredericks was able to stabilize the image, as he described:

The stabilized result, included as a video attachment to this report, locks non-moving objects within the field of view of the camera so that they retain [sic] relatively still even while the camera is in motion. The stabilized result allows the viewer to see the movement of each of the people in the scene without the distraction of the up and down and in and out motion of the camera.^¹¹⁵

Second, Mr. Fredericks isolated a three-second segment of the Pritchard video immediately prior to deployment of the conducted energy weapon (00:03:46:24–00:03:49:21). It shows Mr. Dziekanski with his back to the camera, with a counter between him and the camera, so he is visible from about elbow height upward. He is facing the four RCMP officers, who are spread out in a crescent in front of him.
Mr. Fredericks created a three-second video “loop” and played the segment over and over again. From this repetitive viewing, he told me that he was able to discern the following movements by Mr. Dziekanski, which he described in his written report as follows:

At 00:03:46:24 DZIEKANSKI is standing so that his left shoulder is at the 430^th pixel from the left side of the image in the stabilized view....^¹¹⁶

DZIEKANSKI moves forward and to his right. His body shifts to the right as his weight moves from his left side to his right side, consistent with moving his right foot forward with his body weight moving to his right foot.

At 00:03:47:23, one second after the previous image, DZIEKANSKI has moved so that his left shoulder is positioned at the 459^th pixel from the left in the stabilized view.

A reference for this motion can be seen by comparing the position of the green coloured post on the wall in the background with the position of DZIEKANSKI’s right shoulder. Clearly, he has moved to his right to a position where his elbow is blocking partial view of the post.

At 00:03:48:23, one second after the previous image, DZIEKANSKI has shifted his weight to his left as he moves forward. This motion is consistent with stepping forward with his left foot....

At 00:03:49:21, one second after the previous image, he shifts his weight to the right again as his right leg moves forward toward the officers. One can see that his left shoulder is further away from the light reflected sign and his right shoulder is closer to the green post when compared to the previous image....

Note that each step is exactly one second apart, showing a methodical movement forward.^¹¹⁷

From these observations of the stabilized image (a two-dimensional view), and his 25 years’ experience in forensic video analysis, he concluded that during this three-second period Mr. Dziekanski took three distinct steps forward. However, he could not tell me how far forward Mr. Dziekanski moved:

Q The only thing that you’re able to do with the methodology that you have chosen is to inform this Commission that
Mr. Dziekanski moves forward but you can’t say by what distance?

A I don’t want to guess on how far he’s moved forward. I don’t — I can’t say.

A Yeah, I — I don’t want to comment on how far. I don’t think that would be fair. I couldn’t really comment on that.^¹¹⁸

Mr. Fredericks agreed that his opinion about forward movement is based only on his observation of the stabilized video. Because of the counter, he could not see
Mr. Dziekanski’s legs or feet, and he has no special expertise in biomechanics or the study of human motion.

Third, Mr. Fredericks explained that because the camera was aimed horizontally at about head level, it is difficult to observe small changes in size as a person moves away from the camera. In addition, the camera zoomed out during this three-second segment. Consequently, he resorted to applied reverse projection/photogrammetry to assist with a scientific analysis of positional changes by assessing the relationship between Mr. Dziekanski and fixed objects in the scene. As he stated in his report:

In order to determine if DZIEKANSKI is actually in motion, a calculation showing the percentage of change in his size compared to the percentage of change in the size of the fixed counter will help to show whether DZIEKANSKI is actually moving away from the counter or if he is simply adjusting his weight from side to side.^¹¹⁹

To do this, Mr. Fredericks compared two images, one at the beginning of the three-second segment (Image A) and the other at the end of the three-second segment (Image B). For each image, he measured a set distance on the movable object (i.e., Mr. Dziekanski) and on a fixed object (i.e., the counter). For Mr. Dziekanski, he measured from the top of the collar on Mr. Dziekanski’s jacket down to the bottom of the jacket. However, since the counter hid the bottom of the jacket, Mr. Fredericks measured down to the lowest visible point on the jacket. For the counter, he measured from the top of the counter to the bottom of the centre cupboard on the counter.

Mr. Fredericks found that during the three seconds, the fixed points on the counter went from 105 pixels in length to 82 pixels (due to the camera zooming out), a reduction to 78.09 percent of its length.^¹²⁰ However, the fixed points on
Mr. Dziekanski’s jacket went from 89 pixels in length to 66 pixels, a reduction to 74.16 percent of its length. From this he concluded:

The difference in change between DZIEKANSKI’s collar and the counter between Image A and Image B changes by more than 4%, which is four times the margin of error.

This scientific analysis shows that DZIEKANSKI is clearly moving away from the camera and toward the officers in the three seconds between Image A and Image B.^¹²¹

When asked during the evidentiary hearings what conclusion he drew from these findings, he said:

A Well, my conclusion was only that it validated my observations of the video that Mr. Dziekanski was moving away from the camera, not by how much but simply he was moving away....

A Well, I can’t say — the validation — this doesn’t tell me anything about steps or distance, just that he’s moved away between the images. This doesn’t measure steps.^¹²²

b. Mark Hird-Rutter

Mark Hird-Rutter has worked continually in the field of photogrammetry since graduating from the British Columbia Institute of Technology in 1976. In 2002 he joined BCIT as a full-time instructor in the Geomatics Department, teaching photogrammetry and digital mapping. He is a Certified Photogrammetrist through the American Society of Photogrammetry and Remote Sensing. I accepted Mr. Hird-Rutter as an expert in photogrammetry, and his written report was entered as Exhibit 159.

Mr. Hird-Rutter was retained to analyze the methodologies used by Mr. Fredericks, when he measured the changes in length of Mr. Dziekanski’s coat and the counter over the three-second segment in order to determine whether Mr. Dziekanski moved forward. His ultimate opinion is set out at page 11 of his report:

The methodologies that were used in Mr. Fredericks’ report do not follow the rigours of the Science of Photogrammetry and it would be wrong to use them to determine the movement of Mr. Dziekanski either forwards or backwards.

Mr. Hird-Rutter had several criticisms of Mr. Fredericks’ analysis, including the following:

He described in his report his most significant criticism of Mr. Fredericks’ “flawed methodology”:

The top of Mr. Dziekanski’s collar is identifiable in both images. There are no other points on Mr. Dziekanski’s back that are clear in both pictures. Therefore Mr. Fredericks does not have two points on Mr. Dziekanski to create the perspective geometry.... In the diagram [in Mr. Hird-Rutter’s report]
Mr. Dziekanski could be in any of the positions shown and the measurements would still be the same. It would be wrong, using photogrammetry, to say that Mr. Dziekanski moved either forwards or backwards on these measurements.

It is impossible to make photogrammetric perspective measurement without two identifiable points on the object that is being measured. One cannot do this.^¹²³

c. Duane McInnis

Duane McInnis graduated from Carlton University in 1972 in mechanical engineering. He is a registered professional engineer in British Columbia and Ontario, and is the founder and senior engineer in MEA Forensic Engineers and Scientists, Canada’s largest forensic engineering and scientific firm. He has been accepted as an expert witness 140 times in incident and accident reconstruction, and has researched and lectured on two-dimensional photogrammetry. I accepted him as an expert in the field of mechanical engineering, in incident and accident reconstruction, and with an applied specialty in forensic photogrammetry. His written opinion was filed as Exhibit 160.

Mr. McInnis viewed the stabilized three-second segment of the Pritchard video prepared by Mr. Fredericks. He studied the qualitative movement of Mr. Dziekanski by comparing his position to fixed objects in the images (such as the counter and the parallel lines on the back wall). He found that Mr. Dziekanski was moving at almost all times. “He was swaying left and right, his shoulders were rising and falling, and his head was rising and falling.”^¹²⁴

He told me that in order to use reverse projection photogrammetry to determine if there is motion:

There must be two discrete points on Mr. Dziekanski that have the same angular orientation with respect to the camera, and these two points must be visible in both images. This requires that the two points on each image be known to be the same two points on the object. The contrast between the top of the jacket against the neck, and the bottom of the jacket against the trousers, may suffice. Failing that, there should be two points with a clear delineation, such as the top of the collar and a different coloured belt, button, or object on the back of the jacket, visible in both images. The distance between these two points must remain constant in the object space. Of course, there must be no folding or elastic deformation of the fabric between the two measurements.^¹²⁵

Mr. McInnis said that one cannot see the bottom of Mr. Dziekanski’s jacket in the images, and for that reason Mr. Fredericks amended his report to say that he measured the distance between the top of the collar and the top of the counter. The bottom point is totally meaningless for any photogrammetric analysis, because it is unrelated to Mr. Dziekanski.

He concluded that Mr. Fredericks’ opinion (that Mr. Dziekanski moved toward the officers) is not technically supportable because of measurement errors and the failure to use two measurement points on Mr. Dziekanski’s jacket. Further, since
Mr. Dziekanski is oscillating up and down, as well as side to side, Mr. Fredericks should have conducted his measurements on two images where the vertical positioning is identical, at the same point on the motion.

2. Conducted energy weapon data download

The RCMP’s Integrated Homicide Investigation Team asked Constable Craig Baltzer of the Delta Police Department to download the data from the conducted energy weapon used against Mr. Dziekanski. Cst. Baltzer is a 23-year veteran with the Delta Police. He is a certified firearms trainer and provincial use-of-force instructor, and has been certified by TASER International, Inc. as a Master TASER Instructor and TASER Armorer. I also accepted Cst. Baltzer as an expert in the use of, and in instructing on the use of, TASER conducted energy weapons.

The download report (Exhibit 96) shows that the weapon was deployed five times, for 6 seconds, 5 seconds, 5 seconds, 9 seconds, and 6 seconds, respectively, for a total duration of 31 seconds. In his first of two reports (Exhibit 97), Cst. Baltzer stated, “There is no way to determine through this device to measure the duration of time that the client experienced the effects of the TASER X26E [p. 3].”

Cst. Baltzer told me that if one of the probes attaches to the subject’s skin or adjacent clothing, but the other does not, no electrical current would be transmitted into the subject’s body. When that happens, the weapon will emit a distinctly audible clacking sound. Sometimes, one probe will attach to the skin but the other probe will attach to a shirt or jacket, and if the subject moves about, that part of the shirt or jacket may flap away from and against the skin, causing an intermittent transmission of electrical current into the subject. Based on his review of IHIT photographs showing a probe and filament wires attached to the bottom of a shirt, this appears to be what happened in the Dziekanski incident.

To determine if there were intermittent discharges of current into Mr. Dziekanski’s body, Cst. Baltzer watched the Pritchard video and listened to the audio. He summarized those observations in his second report (Exhibit 97). He told me:

Cst. Baltzer told me that the wire filaments connecting the TASER cartridge to the two probes can offer useful information about, for example, whether they had been broken during deployment, whether the probes had been fully extended or missed the subject, whether there was a burn or short circuit indicating that no electrical current was delivered, and what the probes hit. He did not receive filaments or probes in this case, although he discussed with the Integrated Homicide Investigation Team the types of information that can be obtained from them.

He told me that subjects react differently to a conducted energy weapon. Some fall down immediately, some take a few steps before falling down, and others have no apparent reaction at all. From his review of the Pritchard video, it was his opinion that the first deployment of the weapon caused Mr. Dziekanski to lose his balance and fall down. He agreed that in response to the first deployment, Mr. Dziekanski reached for his chest, which could be a common reaction when the weapon is used in probe mode.

Cst. Baltzer agreed that Mr. Dziekanski’s flailing and hyperactive reactions, while on the floor and during the push-stun mode deployments, were consistent with involuntary spasm caused by the deployment of the weapon.

3. Translation of Mr. Dziekanski’s statements from Polish into English

Mr. Kris Barski testified respecting his translation of Mr. Dziekanski’s statements, as recorded on the first and second segments of the Pritchard video. His translations were filed as Exhibit 31.

The first segment of the video records Mr. Dziekanski’s actions in the International Reception Lounge before the RCMP officers arrived. He is seen in an agitated state, throwing a laptop computer on the floor and a folding wooden table against the glass partition, breaking both. During this video, he makes the following statements at the following times:

1:54 Fine, fine [indecipherable] we are in a different country so [indecipherable]

2:13 I will smash the entire desk. I will smash the entire desk. [indecipherable] trouble.

The second segment of the video records the interaction between Mr. Dziekanski and Ms. Ashrafinia, and between him and the four RCMP officers. He makes the following statements at the following times:

0:06 [While Ms. Ashrafinia is talking to him] How long do I still have to wait.

2:06 [While Mr. Dziekanski is just inside the swinging glass doors (which are open), moving chairs around. Several Airport security officers are about ten feet outside the swinging glass doors, on the public side] So you will not let me go? You will not let me out of here?

3:00 [As the four RCMP officers walk across the public area, toward the swinging glass doors, and Mr. Dziekanski looks in that direction] Police, Police

3:43 [After Cpl. Robinson points toward the counter and
Mr. Dziekanski moves toward the counter] Leave me alone. Leave me alone! Did you become stupid? Or Are you out of your mind? Or Have you lost your minds? Or Have you gone insane? Why?

3:50 [Immediately before Cst. Millington deploys the conducted energy weapon against Mr. Dziekanski] Police, Police

4:30 [While Mr. Dziekanski is on the ground and the four RCMP officers are attempting to restrain him] [Indecipherable]

Mr. Barski told me that his impression, from considering Mr. Dziekanski’s manner of speaking, his demeanour, and the context of the events seen on the video, was that Mr. Dziekanski was confused and scared, not angry.

4. Use-of-force experts

a. Sergeant Brad Fawcett

In March 2008 Sgt. Brad Fawcett of the Vancouver Police Department prepared a 38-page report for the Integrated Homicide Investigation Team respecting the four RCMP officers’ use of force in their interaction with Mr. Dziekanski. His report was filed as an exhibit (Exhibit 89), and he testified during our evidentiary hearings.

Sgt. Fawcett has a B.A. degree from Simon Fraser University and is currently enrolled in an M.A. program in criminal justice at University College of the Fraser Valley. He became a police officer in 1990, and was promoted to sergeant in 2004. He was a full-time use-of-force instructor for seven years and is currently seconded to the Justice Institute of British Columbia as an instructor in use of force and physical fitness. He researched, developed, and implemented the Provincial Use of Force Instructor Certification Course and the Integrated Use of Force Instructor Certification Course at the Justice Institute. I accepted him as an expert in the use of force by police officers in British Columbia, including the use of TASER, and as an expert in the training of police officers in the use of force in British Columbia, including TASER.

In his report, Sgt. Fawcett summarized the written statements of 20 civilian witnesses, the written statements of the four RCMP officers, the Canada Customs video, the Airport Authority video and the Pritchard video, and Cst. Baltzer’s conducted energy weapon data download report. Pages 26–38 of his report set out his “Use of Force Analysis,” which I will summarize below:

The actions of the officers in this incident represent a reasonable escalation and de-escalation of force based upon the actions of the subject. The officers precluded lower force options, specifically high level Officer Presence in conjunction with Communications, by virtue of the fact that they had been attempted and failed. Once Officer Presence and Tactical Communications fail officers must necessarily escalate to the application of physical force. The officers used an Intermediate Weapon, specifically a conducted energy weapon, in conjunction with Physical Control to gain control of DZIEKANSKI. The officers’ actions were consistent with their Common Law duties, various Criminal Code (Canada) provisions and RCMP policy and training....

The reasonableness of a particular use of force must be judged from the perspective of a reasonable peace officer on the scene, rather than with 20/20 vision of hindsight.^¹²⁶

Sgt. Fawcett said that the National Use of Force Framework was developed as a national model, but individual police departments are not bound by it — they are free to develop their own model. The “wheel” is just a visual representation of the law and case law that has evolved over the centuries. It does not authorize the use of certain kinds of force in certain circumstances. It is the law that authorizes the use of force; the framework is merely a teaching aid, and gives guidance in terms of use-of-force decision-making.

He told me that when conducting a use-of-force analysis, he is required to measure the officer’s subjective perception with the reasonableness of a reasonable police officer.

Sgt. Fawcett was asked why he described, as a minor discrepancy and easily understood, the perception of the officers that they were forced to wrestle
Mr. Dziekanski to the ground, when the Pritchard video did not support this perception. He told me:

A When a person’s sympathetic nervous system is activated, if you formulate a plan — and again, I use the heading perception versus recall — it’s an officer’s perception of what is going on. If I intend to carry out a certain act and in the final outcome — for instance, I intend to tackle somebody to the ground — when I recall that event, I may recall the intended plan, not what actually happened. It’s just a function of how we store memory, Mr. Commissioner.

Q You didn’t see the discrepancy as anything other than inadvertent? You just thought it was an inadvertent discrepancy, not intentional?

A Absolutely, Mr. Commissioner. We at the Police Academy are routinely running recruits through simulations and taping them, and it is routine to have their version of events when we debrief them contradicted by the video in very similar manners, if you will.^¹²⁷

Sgt. Fawcett was asked whether he would have responded in the same way that the four officers did in this case. He replied, “I would think any group of officers, you’d have a range of responses depending again on their strengths and weaknesses, their success and failures in similar situations. Would I have done the same thing? Probably not.”^¹²⁸

Sgt. Fawcett was asked, from viewing the Pritchard video, what caused
Mr. Dziekanski’s reaction to the weapon deployment:

Q You saw a man drop to the floor, holding his chest, pushing himself around in a circle, screaming in pain, did you not?

Q All right. Well, did you ever think that his actions while he was on the floor and while the police were dealing with him had more to do with the pain that he was manifesting than it had to do with him resisting arrest?

A I would — I can’t assume anything, other than to say it could be both.^¹²⁹

Counsel for Cst. Bentley asked Sgt. Fawcett a series of hypothetical questions, based on a statement of assumed facts (Exhibit 92). He expressed the following opinions:

Counsel for Cst. Rundel asked Sgt. Fawcett a series of hypothetical questions, based on a statement of assumed facts (Exhibit 94). He expressed the following opinions:

Counsel for Cst. Millington asked Sgt. Fawcett a series of hypothetical questions, based on a statement of assumed facts (Exhibit 93). He expressed the following opinions:

Counsel for Cpl. Robinson asked Sgt. Fawcett a series of hypothetical questions, based on a statement of assumed facts (Exhibit 95). He expressed the following opinions:

b. Corporal Gregg Gillis

Corporal Gregg Gillis, who has been an RCMP officer since 1990, is currently the Regional Use of Force Coordinator. In 2007 he was the officer in charge of use-of-force training for the Richmond detachment. In that capacity, he trained Constables Bentley, Rundel, and Millington in July and August 2007 in the use of conducted energy weapons. I qualified him as an expert on the use of force and conducted energy weapons by RCMP officers, and on training in the use of force and conducted energy weapons.

He told me that the training program consists of two eight-hour training days, including scenario-based training sessions and a standardized examination with an 80 percent score required in order to be certified as a conducted energy weapon operator. All three officers passed the training course and were certified for three years.

In 2007, RCMP officers were trained that they were entitled to deploy a conducted energy weapon when a subject was demonstrating active resistance or behaviour greater than active resistance, taking all relevant situational factors into account. He told me that training does not require the officer to specifically eliminate other options before moving to the conducted energy weapon. Their choice is based on their assessment of risk and the totality of the circumstances. He added:

Q Is it a general principle of use of force that would have been incorporated into the TASER training course that officers should use the least amount of force necessary to resolve a situation, taking into account the situational factors and their assessment at the scene?

A Well, that’s always a professional goal is to try and resolve any given situation with a minimal amount of force. But it’s — so the officers are told that that’s a professional goal that they should strive for. But we accept in dynamic situations that that isn’t — especially when they unfold quickly, that isn’t always the case.

A But that’s part of their assessment phase when they’re looking at all those situational factors and assessing risk, is there something I can do here to establish control that is lesser than other options, and also keeping in mind the potential risks to the officers, the general public, the people they’re dealing with. All that has to be taken into account as the situation’s unfolding.

Q Is that a fair summary of one of the messages that would have been incorporated into your TASER training courses in 2007?

Cpl. Gillis told me that training included possible multiple deployments of the weapon. Officers were taught to, wherever possible, assess risk and assess whether or not the device was still required to be used, and/or assess the possible need to transition to another option.

Officers were taught, whenever tactically appropriate, to give a verbal challenge, but they were not taught to display the weapon or spark it in the hope of gaining compliance without discharging it. The RCMP protocol is that the weapon stays holstered until the officer determines that it is appropriate to potentially use it, in which case the officer draws it and, if appropriate, issues the verbal challenge before deployment.

Officers are trained that if a conducted energy weapon is deployed in probe mode and both probes make contact, the subject will fall to the ground and will remain immobilized during the five-second cycle, but as soon as the cycle ends the subject can immediately stand back up and continue their previous behaviour. If the subject does not immediately fall to the ground, officers are trained that it is due to a weapon malfunction (in which case there is no electrical flow) or to an interruption in the electrical flow because of an air gap, such as where one of the probes is attached to clothing that flaps against and away from the subject’s skin.

A clacking sound indicates that the weapon is either not effective or only partially effective. Hearing that sound is a critical piece of information telling the officer that the weapon may not be effective, which should be incorporated into their assessment of the risk.

When a conducted energy weapon is used in push-stun mode, it is primarily used for pain compliance, although it does cause some degree of localized motor dysfunction in the area where it is deployed, which may, for example, cause the subject to release something.

Officers are taught to communicate respecting deployment of the weapon. The perfect or best outcome is for the backup officers to move in as soon as the subject is immobilized and apply handcuffs. It is always advisable for the officer with the weapon to advise the other officers when he or she is about to deploy it.

The conducted energy weapon is an intermediate device according to the Incident Management/Intervention Model (IM/IM), and it may be deployed in probe or push-stun mode for the same level of subject behaviour. On a subsequent internal review, the officer must be able to explain why the weapon was used, in whichever mode they chose to use.

Officers are taught that they are required to complete a Form 3996 CEW Usage Report after deployment of a conducted energy weapon. As with any report, an officer is expected to complete it with the greatest degree of accuracy possible from his or her recall.

Cpl. Gillis told me that the only way that a conducted energy weapon could discharge continuously for more than five seconds would be if the officer held the trigger down for the full period. Officers are trained that the standard method of deployment is to pull the trigger and then release it, in which case it will run for the five-second cycle. It would be a marked departure from the norm to hold the trigger down for six seconds, and the officer would need to articulate why that was required.

Officers are trained that the multiple application of any use of force increases risk. That principle applies to conducted energy weapons as well. For example, when a subject falls to the ground when incapacitated, there is a risk of injury from the fall. Similarly, a five-second deployment causes muscles to contract, which may cause strained muscles or ligaments, or even stress fractures, and multiple deployments increase the risk of those types of injuries. However, officers are taught that “there’s no medical information that is available that supports that it’s a cause of death or that it has a direct relationship on core body functions such as cardiac care or respiration, [or] that increased exposure does carry increased risk.”^¹³¹

Cpl. Gillis told me that most people who are subjected to a conducted energy weapon discharge find it extremely painful, and pain is always one of the considerations in the officer’s assessment of risk and trying to decide what option or tool he or she should use to manage that risk.

Officers are trained about less-lethal weapons systems. It should be an officer’s operational goal, when taking a person into custody, “to try and choose options or tools that provide for less potential for causing serious injury or the death of the people that you’re dealing with. That’s always the goal.”^¹³² Cpl. Gillis gave me an example: there is less potential for injury in using a conducted energy weapon on a subject than there would be in striking the subject with a defensive baton or resorting to the more conventional tactics of grabbing the subject, fighting him or her to the ground, and having a lengthy physical altercation.

Cpl. Gillis told me that when a subject’s arms are not available, but the back area is, the preferred area to deploy the weapon in push-stun mode is in the scapula or upper shoulder area. It is an effective area for a degree of motor dysfunction, for getting the arm behind the back, for reducing the risk of contacting the facial area, and for staying away from the kidneys.

In response to a question about whether there was time to give Mr. Dziekanski a warning before deploying the conducted energy weapon, Cpl. Gillis said:

In relation to the time frame for them to issue a challenge, what I observed on the limited view that I had on the tape, Mr. Commissioner, is that the event unfolded quite rapidly. The opinions that I offered yesterday were also based on one other critical piece of information, and that’s that Mr. Dziekanski advanced towards the officer. The advancement or closing distance on the officer at that point would require the officer to reasonably consider the use of the device at that point.^¹³³

Cpl. Gillis agreed that in 2007 recruit and in-service use-of-force training included de-escalation techniques and verbal crisis-intervention matters. The RCMP has a subject matter expert in relation to mental health crisis intervention training, and mental health experts are brought in to assist officers with understanding persons who are in mental health or emotional crisis and learning how to defuse those situations using non-traditional police tactics.

Counsel for Cst. Millington asked Cpl. Gillis a series of hypothetical questions, based on a statement of assumed facts (Exhibit 93). He expressed the following opinions:

The training now is that officers should try to avoid going into close contact and instead should try and use devices or tools, OC spray, or the CEW in this case would be consistent.... The goal is to use that at distance, because it allows for better assessment and it helps minimize the risk of injury to all the parties involved, including the person you’re restraining.^¹³⁵

Counsel for Cst. Bentley asked Cpl. Gillis a series of hypothetical questions, based on a statement of assumed facts (Exhibit 92). He expressed the following opinions:

Counsel for Cpl. Robinson asked Cpl. Gillis a series of hypothetical questions, based on a statement of assumed facts (Exhibit 95). He expressed the following opinions:

Counsel for Cst. Rundel asked Cpl. Gillis a series of hypothetical questions, based on a statement of assumed facts (Exhibit 94). He expressed the following opinions:

c. Orville Nickel

Mr. Orville Nickel joined the RCMP in 1969 and retired in 1995 as a sergeant in the Commercial Crime Section. Between 2003 and 2006 he did contract work for the RCMP in its Integrated Market Enforcement Team. During his career, Mr. Nickel trained recruits in the use of force at the Regina Depot for three years, and subsequently was a local firearms instructor and use-of-force trainer at the Burnaby detachment. He completed a one-day TASER conducted energy weapon refresher course in 2005. He has been accepted as an expert witness in the use of force by several British Columbia courts. Although Mr. Nickel retired before the RCMP introduced conducted energy weapons or adopted the IM/IM, I accepted him as an expert in the use of force generally. I was satisfied that ultimately the use of force must be consistent with the criminal law, which has not changed recently. How his general expertise relates to the specifics of what occurred in this case may affect the weight that I attach to his opinions.

Mr. Nickel told me that one of the major officer/subject factor considerations in the use of force is the ratio of officers to subjects that in this case was four officers to one subject.

One of the tactics of dealing with difficult situations is to change the pace at which events are occurring. One of the alternatives that might have been useful in this case would have been for the officers to pause before confronting Mr. Dziekanski and to formulate a plan or strategy. There is no evidence from the video that either the officers or members of the public were immediately in danger. For example, two of the officers could have maintained contact with Mr. Dziekanski, while the other two officers could have talked to civilian witnesses and Customs and Immigration officers to obtain background information about what had gone on before their arrival. This could have bought some time and slowed things down, creating the opportunity for
Mr. Dziekanski to settle down. He said:

What did the police officers have to fear by spending some time in observing and trying to calm the circumstances rather than getting into escalating in levels of force.^¹³⁶

Mr. Nickel told me that it is clear that the supervising corporal quickly took command upon entering the scene, in giving commands to Mr. Dziekanski and in commanding Cst. Millington twice to deploy the conducted energy weapon. Given the limited experience of the three constables, they should have been looking to the corporal for direction in how to deal with the situation. When asked for his opinion as to the appropriateness of the degree of force employed by the officers, Mr. Nickel said:

Any time that there are alternatives that exist of lesser levels of force, those lesser levels have to be examined and employed if at all possible. I mean, with four police officers versus one subject, you know, it could have been — in terms of arresting Mr. Dziekanski, it could have been as simple as one officer for each limb and just carrying him away if they needed to do that. That may not have been necessary to go to a level of using a weapon in order to subdue Mr. Dziekanski under those conditions.^¹³⁷

Mr. Nickel said that he did not see the reason for the second through fifth deployments of the conducted energy weapon. Mr. Dziekanski fell to the floor during the first deployment, and when he went into the fetal or turtling position with his arms against his chest and his knees up toward his waist, this was likely in response to the extreme pain. Applying more pain in such circumstances may strengthen that position or cause the subject to be even more determined to stay in that position because it is a position of comfort in a time of pain.

With respect to handcuffing Mr. Dziekanski, the video shows that two officers had the handcuffs in one hand, while using the other hand to try to pry Mr. Dziekanski’s arm around behind his back. It would have been more effective to leave the handcuffs on their belts, use both hands until they had got his arm behind his back, and then bring the handcuffs out and apply them.

Mr. Nickel told me that the manner in which Cst. Bentley collapsed his extendable baton was not professional. It should have been done away from the subject and outside of public view, and the preferable way to collapse the baton is to hold it between the thumb and forefinger and lightly drop it on the concrete floor. Grabbing the baton with a fist and driving it into the floor locks the baton more firmly in its locked-out position.

Mr. Nickel said that it is preferable for one officer to make contact with the subject and for the other officers to step back to observe and assist where required. This enhances consistency of message. When more than one officer gets involved, it starts to create a sense of confusion, even when there is no language barrier.

Mr. Nickel expressed the view that the deployment of the conducted energy weapon (or any kind of weapon or even empty-hand physical force) occurred very early in this encounter. He said:

I would have liked to have seen it evolve differently and different levels of force applied, or at least some time taken to consider the different levels.... And I mean, it’s more appropriate and you don’t lose anything by waiting and allowing some time to pass, to try to get — allow the circumstances to settle themselves down before jumping in to apply physical force.

I didn’t see in any of the evidence that I reviewed that there was a need to rush through this particular circumstance.^¹³⁸

Mr. Nickel said that when an officer applies pain compliance techniques, there is a rational component. The officer should be communicating to the subject what the officer’s expectations are and what the subject needs to do in order to mitigate the pain. However, when dealing with subjects who have emotional or mental health difficulties, “the best strategy is to try to avoid physical confrontation altogether if that’s possible, because the rational components of that confrontation are going to be missing.”^¹³⁹

Mr. Nickel agreed that once the decision has been made to apply physical force, the officers should move in and restrain the subject as quickly as possible.

Mr. Nickel was asked whether Mr. Dziekanski’s throwing up his hands and moving away from the officers was resistive behaviour. He responded that it might have been like shrugging shoulders and saying, “Well, what is it that you expect from me? You know, you’re asking me to get my identification and now all of a sudden you’re saying I can’t go in my luggage where my identification is located.” It has the potential for creating a circumstance of confusion within the mind of the subject, when more than one officer tries to communicate with him at one time.

Mr. Nickel told me that Mr. Dziekanski’s picking up of the stapler and holding it in a clenched fist was not combative behaviour itself, although it was indicative that combative behaviour might be happening very soon. In his view, Mr. Dziekanski would be much more dangerous with two empty hands than he would be with a stapler in his hand, because the stapler limits what he can do with that hand and the officer knows what to expect.

When the officer is not able to communicate with the subject, and relies on a conducted energy weapon to achieve pain compliance, Mr. Nickel said that there is a risk that the officer will misinterpret the subject’s reaction as resistance, when in fact the subject just does not know what is expected of him — the more the weapon is used, the more the subject resists, and the more the subject resists, the more the weapon is used. Where does the cycle stop?

Several weeks after Mr. Nickel testified, Sgt. Fawcett prepared a detailed written rebuttal (Exhibit 187), to which I have given careful consideration.

d. Dr. Michael Charles Webster

Dr. Michael Charles Webster has a B.A. degree from the University of Notre Dame, an M.Ed. degree in counselling/clinical psychology from Western Washington State College, and an Ed.D. in counselling/clinical psychology from the University of British Columbia, and is a Registered Psychologist. He has acted as a psychological consultant to the FBI and to the RCMP. He has been involved in crisis negotiations around barricaded persons, hostage takings, and kidnappings, both domestic and foreign. He has taught crisis intervention and crisis negotiation courses at the Canadian Police College and the Justice Institute’s Police Academy. I accepted him as an expert in the use of force from a crisis intervention perspective.

Dr. Webster told me that he disagreed with the suggestion that responding to this dispatch did not require a plan. The officers have said that this was an unusual call, and according to the RCMP’s CAPRA model, the most experienced officer should have taken charge. It is integral to the IM/IM to continually assess the risk and to formulate a plan that will assist the officer to act. In this case the supervising corporal, after identifying the subject of the dispatch (“locate”), should have dispatched one of the constables to the Customs Hall to prevent arriving passengers from entering the International Reception Lounge (“isolate”), instructed another officer to evacuate members of the public from the area (“evacuate”), and then initiated interaction with Mr. Dziekanski (“communicate”). There was no rush, and he could begin to interact with a very distraught, hyper-aroused individual.

Dr. Webster said that during recruit training at RCMP Depot, there are approximately 200 classroom sessions over the six-month period of training, amounting to 365–370 classroom hours. About 60 of those hours are devoted to conflict avoidance, conflict resolution, and crisis intervention. Recruits are taught that it is much easier to enter a situation with a low intensity and then increase the intensity if necessary, than to go in at a high level of intensity — it is next to impossible to go in at an intensity of eight or nine on a scale of ten, and then expect to defuse an emotionally distraught individual. A man in Mr. Dziekanski’s state of hyper-arousal would have had his cognitive processes disrupted and disorganized. He would not be able to comprehend instructions, use good judgement, or make good decisions. The objective should have been to help him regain his cognitive organization. In this case the officers initially did this by modelling calmness, and Mr. Dziekanski responded appropriately. He was happy to see them and his hands went down to his side. But then the officers gave him several sets of instructions; he could not cope with one set, let alone three.

Recruits are taught to approach a situation using neutral, non-threatening body postures and calm, non-confrontational tones. Vaulting over the handrail was inconsistent with this approach. However, Cst. Bentley’s initial verbal communication with Mr. Dziekanski was effective in calming him down, because Mr. Dziekanski dropped his hands to his side. But everything the officers did after that was inconsistent with their conflict resolution training.

It is important for officers to be empathetic, to put themselves in the subject’s shoes. When the four officers formed a semicircle around Mr. Dziekanski and placed their hands near their weapons, this was absolutely inconsistent with getting him to calm down. In his state of hyper-arousal, this action was bound to stimulate reactive behaviour. The officers failed to realize that they were dealing with an emotional crisis (where an individual has lost his mental balance and his usual coping mechanisms, and is unable to deal with the present situation), rather than a behavioural emergency (where an individual is a threat to himself or another person). In a behavioural emergency tight containment is required, but in an emotional crisis it is not. Circling him only increases his fear.

Dr. Webster told me that the tactical considerations during this incident (e.g., containment, position, backup, police tools available, subject’s condition, subject’s weapon) were significantly in favour of the officers. Applying the One-Plus-One Theory, if Mr. Dziekanski’s resistance was at level 2, then officers are taught to go in at level 3 in order to bring the subject under control. This would be a proportionate application of force. However, deploying the conducted energy weapon was going in at level 9, which was a “precise” application of force, designed to overwhelm, dominate, or destroy. It was not necessary. He added:

What we’ve just talked about in terms of tactical considerations and the difference between precise and proportionate force, arguably makes the second, third, fourth and fifth cycles of the TASER an excessive use of force.^¹⁴⁰

Dr. Webster said that he is one of the service providers in the RCMP’s Members’ Employee Assistance program, in which he conducts critical incident debriefings. He told me that the RCMP approach is based on the Mitchell model:

It begins with an introductory phase and then there is a fact-finding phase where the members sit and they relate to details of the incident that they’ve just been involved in. Everyone goes around the table and they relate the details of the incident. Then there’s a thought phase where we talk about what our thoughts were in regards to what happened. Then there’s an emotional phase where we talk about our feelings in regards to what has happened. And then, after that, usually the other — the final — there’s an educational phase and then the person who’s running the group takes over, deals with the questions and wraps it up and off we go.^¹⁴¹

It was suggested to Dr. Webster that the situation escalated, from the police perspective, in a fraction of a second, from dealing with an unarmed individual to someone who was armed. He responded that Mr. Dziekanski was not behaving in a vacuum:

It was an interaction with the policemen and everything they were doing was inconsistent with what you have just described to me in the first few moments of their meeting where they were able to get him to keep his hands at his side. After that, it began to degenerate, and it degenerated because of what they were doing. He was responding to what they were doing, they were responding to what he was doing and now we’re in a never-ending dance here that ends up in tragedy.^¹⁴²

Dr. Webster cautioned against reading too much into the term “hyper-arousal.” He could not give a clear diagnosis of Mr. Dziekanski’s mental condition from viewing the Pritchard video. Mr. Dziekanski may have been in a hyper-aroused state, but the most one can really say for sure is that Mr. Dziekanski was “not quite himself.” Dr. Webster emphasized that while police perception is their reality (e.g., in their mind the stapler was a credible threat), there was a piece missing. They also had to take into account tactical considerations, which in this case would have reduced the credibility of the stapler as a weapon.

Several weeks after Dr. Webster testified, Sgt. Fawcett prepared a detailed written rebuttal (Exhibit 187), to which I have given careful consideration.

F. FINDINGS OF FACT AND CONCLUSIONS

Before making any findings of fact or reaching any conclusions, I gave careful consideration to the written and oral closing submissions of counsel for the participants.

1. Responding to calls for assistance

At about 1:26 a.m. on October 14, 2007, Corporal Robinson and Constables Rundel, Bentley, and Millington were sitting together during a lunch break at the Airport sub-detachment when they received a call from Richmond Dispatch. Dispatch informed them that there was an intoxicated 55-year-old non-white male at the International Arrivals Reception Lounge throwing luggage around. He had dark hair and a white coat. Cst. Millington was the first officer to respond to the call, so it was assigned to him. The other two constables went as well, and Cpl. Robinson decided to go in order to oversee and to supervise. The officers testified that there was no discussion among them when the call came in, and that there was no instruction or assignment about who was to attend.

Each officer drove to the International Terminal separately, without lights or sirens. En route, they were updated by radio that the male was now throwing chairs through glass windows in the same area. The officers testified that there were no discussions en route about the dispatch, and that there was no plan in place as to how to deal with this incident. Several officers told me that it was hard to plan for this type of call — it would be better to get to the scene and make an assessment there, before developing a plan.

It took about one minute to reach the International Terminal. All four police vehicles arrived and all four officers entered the building at about the same time. The officers testified that they did not have any conversation among themselves as they entered the building.

While walking through the public Meeting Area, Cst. Millington heard some yelling, but did not understand it and did not know where it was coming from. I expect that what Cst. Millington heard was Mr. Dziekanski calling out, ”Police. Police” when he first saw the officers approaching, which was captured on the Pritchard video. At that time, Mr. Dziekanski was standing just inside the swinging glass doors, with two wheeled chairs blocking the walkway.

Cst. Bentley heard a female employee of Horizon Air say in an excited, very high, fast voice, “He’s over by the glass,” pointing to where Mr. Dziekanski was. She also said that he was breaking glass or trying to break glass. Cst. Rundel, Cst. Millington, and Cpl. Robinson heard varying combinations of “He doesn’t speak English” or “He speaks Russian.” Cpl. Robinson heard an Airport security person say words to the effect, “He’s freaking out.” Cst. Bentley turned to the other officers and asked whether anyone had a TASER, and Cst. Millington said, “Yes.”

In addition to the evidence of the four officers, I heard evidence about Chief Superintendent Bent’s November 5, 2007, e-mail to Assistant Commissioner Macintyre, in which he stated that Superintendent Rideout had indicated to him that the four officers had discussed the response en route to the Airport and decided that if
Mr. Dziekanski did not comply they would use a conducted energy weapon against him. Despite the RCMP’s disclosure (after this e-mail came to light) of 18,000 documents relating to the Dziekanski incident and the resulting criminal investigation, there is almost no other documentary evidence that sheds light on what led up to the drafting of this e-mail or what happened as a result of it.

From this evidence, I have drawn several conclusions. First, there is conflicting evidence respecting whether the four officers developed a plan en route to the Airport to deploy the conducted energy weapon if Mr. Dziekanski did not comply. On the one hand, I have the sworn evidence of the four officers that they had no such discussions. I have evidence from several witnesses that this was not the type of dispatch that would call for development of a plan. In my view, it is entirely plausible that the officers would want to wait until they got to the Airport before they made a risk assessment and formulated a plan. Supt. Rideout, the officer in charge of the IHIT investigation, told me that IHIT found absolutely no evidence to indicate that the four officers made any plan en route to the Airport. Finally, there is evidence that as Cst. Bentley approached the handrail, he turned his head and directed a general question at the other officers as to whether anyone had a conducted energy weapon — an illogical gesture if they had already developed a plan to use such a weapon.

On the other hand, there are several facts that are consistent with development of a plan. It was only 26 seconds between the time that Cst. Bentley first spoke to
Mr. Dziekanski and the time when Cst. Millington first deployed the conducted energy weapon — a surprisingly short period of time to make initial contact, establish communication, make a risk assessment, conclude that force was necessary, and conclude that no lesser force option was appropriate. In addition, we have the Bent e-mail. On its face, the e-mail is unequivocal: “Finally, spoke to Wayne and he indicated that the members did not articulate that they saw the symptoms of excited delirium, but instead had discussed the response en route and decided that if he did not comply that they would go to CEW.” In his direct examination, Chief Superintendent Bent said that the e-mail accurately reflected his conversation with Supt. Rideout. However, in cross-examination he acknowledged that he certainly could have misunderstood parts of what Supt. Rideout said about the officers developing a plan en route to the Airport. Supt. Rideout testified that the first two paragraphs of the e-mail accurately reflect their discussion, but the way Chief Superintendent Bent portrayed his comments in the third paragraph was wrong.

I am satisfied that Chief Superintendent Bent and Supt. Rideout had some conversation about the four officers’ version of events, which likely included discussion of the prompt deployment of the conducted energy weapon — that was what Chief Superintendent Bent had earlier that morning asked Chief Superintendent McGowan to find out about, which presumably led to the Bent/Rideout conversation. The contents of Chief Superintendent Bent’s third paragraph could not have come out of thin air. However, we do not know the substance of the Bent/Rideout conversation on this matter, and we are left with Supt. Rideout’s unequivocal assertion that Chief Superintendent Bent’s account is wrong, and Chief Superintendent Bent’s candid acknowledgement that he certainly could have misunderstood parts of what
Supt. Rideout said about the officers developing a plan en route to the Airport.

Taking all this evidence into consideration, I have concluded that the third paragraph of Chief Superintendent Bent’s November 5, 2007, e-mail is inaccurate on this issue. I also conclude that the four RCMP officers who responded to the Dziekanski incident did not develop a plan en route to the Airport to deploy the conducted energy weapon if Mr. Dziekanski did not comply.

Second, I am satisfied that none of the officers stopped to consult with any civilians who were present while walking through the public Meeting Area, and that there was no other discussion among the officers (except for Cst. Bentley’s enquiry whether any of the other officers had a conducted energy weapon).

Third, I am satisfied that the four officers acted appropriately in walking through the public Meeting Area without stopping to get more information from bystanders. Their first priority was to get to the person who was the subject of the dispatch and, once there, to make an assessment of the circumstances and how they should respond.

2. The officers’ initial observations of Mr. Dziekanski

As the four officers approached the handrailing near the swinging glass doors that separated the public Meeting Area from the International Reception Lounge, they saw Mr. Dziekanski and were able to make an initial assessment of him. Although their individual accounts vary to some extent, overall they paint a fairly consistent picture of a man who was unkempt and sweating, breathing heavily, disoriented, agitated, perhaps emotionally disturbed, and wearing a wide-eyed, glazed look. He was standing there or pacing back and forth, with his hands at his side. These observations are consistent with what one sees on the Pritchard video. Mr. Dziekanski was cooperative when the officers initially engaged him. One officer said that
Mr. Dziekanski was initially calm; while he did not expect Mr. Dziekanski might start a fight, he wanted to be prepared for it. Another officer thought that he might be intoxicated, although he did not smell any alcohol.

None of the officers saw any broken glass or any luggage that had been thrown around, although one said there was debris around his feet, which likely refers to the broken computer and folding table.

The Pritchard video shows the officers climbing over the handrailing as they approached the swinging glass doors. I do not fault them for doing so. Glass panels prevented them from going under the railing, and walking back and around the railing would have unreasonably delayed their primary goal of getting to the scene and making an assessment as promptly as possible.

3. Entering the secure area

Cst. Bentley was the first officer to climb over the handrailing. After doing so and then approaching the swinging glass doors, he said to Mr. Dziekanski, “Hi, how are you, sir? How’s it going, bud?” I accept his evidence that he had not heard anyone say that Mr. Dziekanski did not speak English. From the Pritchard video, I am satisfied that his statements were an appropriate first step in making contact with
Mr. Dziekanski, and that he used a conversational tone. Not surprisingly, Mr. Dziekanski did not respond. He was, according to Cst. Bentley, calm and cooperative, and his hands were at his side.

According to the use-of-force experts, Cst. Bentley’s initiative in speaking to
Mr. Dziekanski made him the contact officer. In the normal course of events,
Cst. Bentley would be expected to continue to take the lead role in engaging with
Mr. Dziekanski. Constables Rundel and Millington would adopt the role of cover officers, holding back but being ready to intervene if necessary, and Cpl. Robinson would act as supervising officer, observing the overall incident and being ready to take over the role of contact officer if he concluded that Cst. Bentley was not capable of continuing in that role.

There was disagreement among the use-of-force experts as to whether it was appropriate for Cst. Bentley to take the lead role. Sgt. Fawcett and Cpl. Gillis expressed the opinion that Cpl. Robinson acted appropriately in allowing one of his subordinates to take the lead, as that is the only way that junior officers can acquire command experience. Dr. Webster took the opposite view, for two reasons. First, the nature of the call was unusual — to be dispatched to the Airport in response to a possibly intoxicated man damaging property. Second, Cst. Bentley had the least field experience of the four officers.

In my view, Cst. Bentley cannot be faulted for initiating contact with Mr. Dziekanski, and Cpl. Robinson cannot be faulted for allowing Cst. Bentley to take the lead role. While it may have been unusual to respond to a call of this type in an Airport setting, it would not be at all unusual to respond to a call of a possibly intoxicated man causing property damage in any number of other community settings. Cst. Bentley had 16 months of field experience after graduating from Depot, and it was reasonable for Cpl. Robinson to conclude that he had sufficient practical experience to take the lead, based on the dispatch information they had received and what Cpl. Robinson personally observed as they approached Mr. Dziekanski. While there may be honestly held differences of opinion on this issue, it was ultimately a judgement call for
Cpl. Robinson. I am satisfied he acted appropriately in allowing Cst. Bentley to take the lead.

However, the respective roles of the four officers changed twice, and dramatically, within the next 15 seconds. The first change occurred when Cst. Millington took over as contact officer. Knowing that Mr. Dziekanski did not speak English, he pushed his hands toward the floor in an attempt to get Mr. Dziekanski to calm down. He also said “passport” and “identification,” and when Mr. Dziekanski did not seem to understand, he mimed writing with a pen. Mr. Dziekanski turned and, according to the Pritchard video, made a very tentative downward movement toward the nearby luggage.

Based on the evidence of the use-of-force experts, I consider Cst. Millington’s unilateral decision to take over as contact officer, while well-intentioned, to have been an error of judgement, especially since he gave no prior communication to
Cst. Bentley or the other officers. There is no suggestion that Cst. Bentley was incapable of continuing as contact officer, and no evidence that Mr. Dziekanski, by his actions, was expressing a preference to deal with Cst. Millington. His intervention may also have added to Mr. Dziekanski’s confusion. Nevertheless, having taken on this role, Cst. Millington’s request for passport and identification was reasonable and appropriate in establishing whom they were dealing with and as a first step in finding a way to communicate with a person who he realized did not speak English.

The second change occurred when Mr. Dziekanski made a tentative movement downward toward the luggage, captured at 3:37 on the Pritchard video. I interpret that movement as Mr. Dziekanski’s attempt to retrieve his travel documents from his luggage. Although the video does not capture the audio, I accept Cpl. Robinson’s testimony that at this point he stepped in and took charge. He said, “No. Stop” in what Cst. Rundel described as an authoritative, stern voice, and made a hand gesture conveying the message, “You are not going into your luggage.” The video shows
Cpl. Robinson’s arm coming up, pointing generally in Mr. Dziekanski’s direction. According to Cpl. Robinson, Mr. Dziekanski stopped going toward his luggage and was thus complying with his direction. The video confirms this — Mr. Dziekanski returned to a normal, upright stance, with his arms at his side, engaging in eye contact with the officers (3:39).

Was it appropriate or necessary for Cpl. Robinson to intervene in this manner at this time? In my view, it was not. There are several aspects of Cpl. Robinson’s intervention that warrant comment:

4. Mr. Dziekanski’s movement toward the counter

The Pritchard video shows that two seconds later (3:41) Mr. Dziekanski threw up his arms, lowered his head, and turned away from the officers, moving toward the nearby counter. As he did so, Cpl. Robinson moved closer behind him with his arm outstretched, pointing toward the counter. During this sequence (at 3:43),
Mr. Dziekanski said, in translation, “Leave me alone. Leave me alone! Did you become stupid? Or, Are you out of your mind? Or, Have you lost your minds? Or, Have you gone insane? Why?”

Cpl. Robinson testified that he pointed with his finger and motioned with his hands for Mr. Dziekanski to put his hands on the counter, and told him to put his hands on the counter. He conceded that Mr. Dziekanski would not have understood his verbal instruction. In their testimony, Constables Bentley and Millington described this behaviour of Mr. Dziekanski as defiant. Cst. Rundel, who described it as resistant, paraphrased the behaviour as, “To hell with you guys, I’m out of here.”

I have reached several conclusions about this sequence of events. I am satisfied that Mr. Dziekanski understood and complied with Cpl. Robinson’s command not to go into his luggage. Then, two seconds later, Mr. Dziekanski threw up his arms, turned away from the officers, and began moving toward the counter. I am satisfied that
Mr. Dziekanski took this action on his own initiative and not in response to a command from any of the officers. This conclusion is consistent with my interpretation of the Pritchard video and with the testimony of the three constables.

There is a dispute in the evidence as to how this action by Mr. Dziekanski should be characterized. A majority of the officers described it as defiant or resistant, and two use-of-force experts (Sgt. Fawcett and Cpl. Gillis) supported that view. Indeed, these two experts expressed the opinion that Mr. Dziekanski’s turning and moving away from the officers amounted to “resistant” behaviour as then defined in the RCMP’s Incident Management/Intervention Model, justifying deployment of an intermediate weapon or device, including a conducted energy weapon. The opposing interpretation, expressed by Mr. Nickel and Dr. Webster, was that Mr. Dziekanski was acting out of frustration after receiving contradictory instructions by Cst. Millington and Cpl. Robinson.

I favour the latter interpretation. Having been asked to produce identification and having begun to get them from his luggage, only to be told in an authoritative manner not to do so, we can now infer through the English translation of his comments (“Leave me alone. Have you lost your minds?”) that these contradictory demands frustrated him. His throwing up his arms and beginning to move away from the officers is entirely consistent with this reaction. At this point in time, the only commands he had been given were to calm down and not to go into his luggage. He had not been told to stay where he was, so his moving away from the officers can hardly be characterized as resistant or defiant behaviour. There is no evidence that he was acting contrary to a direction or command from any of the officers. In my view, Mr. Dziekanski was neither resistant nor defiant, and the officers did not honestly believe that he was.

The video shows that as Mr. Dziekanski moved toward the counter, Cpl. Robinson followed close behind, pointing toward the counter (3:42–3:44). I am satisfied that it was only after Mr. Dziekanski began moving away from the officers that Cpl. Robinson began directing him toward the counter. When he did so, the video shows that
Mr. Dziekanski did in fact move to the counter, which I interpret as him acting in compliance with Cpl. Robinson’s direction. While I accept Cpl. Robinson’s testimony that he wanted Mr. Dziekanski to place his hands on the counter, the Pritchard video does not capture any verbal instructions to do so, and the video is unclear as to whether Cpl. Robinson made any hand gestures other than pointing toward the counter. I am not satisfied that Mr. Dziekanski understood any direction to place his hands on the counter. He would not have understood Cpl. Robinson’s verbal command, and since Cpl. Robinson was moving up behind him, Mr. Dziekanski may not have seen any hand gestures or, if he did, understood their meaning. In short, I am satisfied that Mr. Dziekanski moved to the counter in compliance with Cpl. Robinson’s direction.

5. Picking up the stapler

On the Pritchard video, Mr. Dziekanski reached the counter by 3:44. He turned and faced Cpl. Robinson. At 3:45, Mr. Dziekanski shuffled backward a step and rotated to his right. Although Mr. Dziekanski’s image and actions are partially obscured by a reflection on the glass partition through which Mr. Pritchard was filming, it is not in dispute that at this point in the sequence Mr. Dziekanski picked up a stapler that was sitting on the counter. At 3:46, Cst. Bentley appeared to react to something he saw by positioning himself farther to Mr. Dziekanski’s right until he disappeared from view.

At 3:47, Cpl. Robinson pulled out his baton and held it at head height, but did not extend it. The video shows Mr. Dziekanski with his upper arms down against his torso, but his lower arms and hands are not visible. At 3:48, Mr. Dziekanski’s upper arms came away from his torso. He was looking at Cpl. Robinson. At 3:49, Mr. Dziekanski said something, which may have been, in translation, “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 addition to the Pritchard video, we have the testimony of the four officers, as well as their police notes and the written statements they gave to members of the Integrated Homicide Investigation Team. Earlier in this part, I summarized this evidence. From my review of this evidence, two matters were in dispute — whether Mr. Dziekanski brandished the stapler toward one or more of the officers in a threatening manner and whether he took one or more steps toward one or more of the officers, while holding the stapler. I will deal with each in turn.

a. Whether Mr. Dziekanski brandished the stapler

In his first statement to the Integrated Homicide Investigation Team (IHIT),
Cst. Rundel said that Mr. Dziekanski put the stapler above his head and made motions with it toward the officers. In his second statement to IHIT, he said that
Mr. Dziekanski motioned toward the officers with the stapler in an aggressive, combative style. In his testimony, he did not recall Mr. Dziekanski motioning toward him with the stapler or shooting staples out of it. He clarified that when he had referred in his IHIT statements to the stapler being above Mr. Dziekanski’s head and making motions toward the officers with it, he was referring to after the second deployment of the conducted energy weapon.

In his police notes, Cst. Bentley stated that Mr. Dziekanski grabbed the stapler and came at the members screaming. In his testimony he agreed that this was incorrect, but later testified that it was somewhat accurate, just out of sequence. It was his screaming and body movement after being hit with the TASER that caused him to move forward. Cst. Bentley testified that when Mr. Dziekanski swung the stapler around, it came within a foot or two of him, and he thought he was going to be hit with it. The stapler was in the closed position, and it was not pointed at him.

Cst. Millington testified that when Mr. Dziekanski picked up the stapler, he held it in one hand and started to approach the officers with hands up.

Cpl. Robinson testified that Mr. Dziekanski was clenching the stapler in his fist. He made motions with his fist and a couple of staples discharged.

Three civilian witnesses, whose testimony I summarized in Part 5, addressed this issue:

Based on my review of all of this evidence, I am satisfied that after Mr. Dziekanski picked up the stapler, he held it in his right hand, in front of him, at or below his chest level. His left hand was also in front of him, at or below his chest level. I am satisfied that he did not brandish the stapler, either by placing it above his head or motioning with it in an aggressive manner toward any of the officers — either of those actions would have been caught on the Pritchard video. The video contradicts
Cst. Bentley’s assertion that Mr. Dziekanski swung the stapler within one or two feet of him. Further, I do not believe that any of the four officers thought that Mr. Dziekanski was brandishing the stapler.

I reject both of these after-the-fact rationalizations as patently unbelievable. They were both, in my view, desperate attempts to explain away important inaccuracies in their police notes and statements to homicide investigators. I think the public is entitled to expect that officers involved in a serious investigation, especially a police-related death, will apply care and professional judgement in how they record their recollection of important events, especially when giving a statement to a homicide investigator. These two officers failed that test miserably. The public is equally entitled to expect that when officers testify under oath, they will be candid and forthright, and if their earlier notes or statements are shown to be inaccurate (as the Pritchard video showed in this case), they acknowledge the inaccuracy. These two officers did just the opposite by offering revisionist interpretations of their previous statements that were unbelievable.

b. Whether Mr. Dziekanski took one or more steps toward one or more of the officers

According to Cst. Rundel, Mr. Dziekanski stepped forward with his left foot while he was holding the stapler.

Although Cst. Bentley wrote in his police notes that Mr. Dziekanski came screaming at them with the stapler, in his testimony he conceded that that account was incorrect.

According to Cst. Millington, when Mr. Dziekanski picked up the stapler, he held it in one hand and started to approach the officers with hands up.

According to Cpl. Robinson, Mr. Dziekanski took a step forward with the clenched fist, at which point Cpl. Robinson pulled out his baton and instructed Cst. Millington to deploy the conducted energy weapon.

Two civilian witnesses, whose testimony I summarized in Part 5, addressed this issue:

In support of the officers’ assertions that Mr. Dziekanski stepped toward them while clenching the stapler in his fist, a forensic video analyst gave expert evidence. In response, counsel for a participant called two experts in photogrammetry. Earlier in this part, I summarized the testimony of these three witnesses.

From my review of this evidence and the Pritchard video, I have concluded that
Mr. Dziekanski did not step toward one or more of the officers while clenching the stapler. I will explain why.

Mr. Fredericks testified that from his repetitive viewing of a three-second segment of a stabilized version of the Pritchard video, he identified Mr. Dziekanski take three distinct steps forward (right, left, right), based on his analysis of shoulder movements, although he could not say what distance he moved forward. He acknowledged that he could not see Mr. Dziekanski’s legs or feet, and had no special expertise in biomechanics or the study of human motion. In order to verify these findings,
Mr. Fredericks measured changes in the size of a movable object (Mr. Dziekanski’s jacket), as opposed to changes in the size of a fixed object (the counter), as
Mr. Pritchard’s video zoomed out during the three-second segment. He concluded that the jacket reduced in size more than the counter, from which he concluded that Mr. Dziekanski was clearly moving away from the camera and toward the officers.

6. Deployment of the conducted energy weapon

In his testimony, Cst. Millington gave his rationale for deploying the conducted energy weapon in probe mode against Mr. Dziekanski:

He clarified that Mr. Dziekanski was approaching either Cst. Rundel or Cpl. Robinson, not Cst. Bentley or himself. He deployed the weapon on his own initiative, without any instruction from another officer to do so.

In his testimony, Cpl. Robinson said that when Mr. Dziekanski took a step forward with the stapler in his clenched fist, that was combative behaviour, and he instructed
Cst. Millington to deploy the conducted energy weapon. Although he had pulled his baton out, he considered it preferable to deploy the conducted energy weapon instead of the baton, because the conducted energy weapon can give instantaneous control and creates less risk of injury to the subject. Given Mr. Dziekanski’s combative nature (grabbing the stapler and taking a step forward) there was no time to issue the TASER warning before deploying it.

From my review of the evidence, I have reached several preliminary conclusions. First, two of the officers had independently decided to deploy the conducted energy weapon, and the other two officers were not surprised when they heard it being deployed. Second, I am satisfied that Cst. Millington did not hear Cpl. Robinson’s instruction to deploy the weapon, and deployed it of his own initiative. Third, both Cst. Millington and Cpl. Robinson gave three reasons for deploying the weapon —
Mr. Dziekanski’s combative nature or stance, his clenching the stapler in his raised fist, and his stepping toward the officers. Fourth, Cst. Millington testified that he believed that Mr. Dziekanski intended to attack, and Cpl. Robinson’s testimony was to the same effect.

It is not my role as Commissioner to pass judgement on whether or not Cst. Millington was justified under s. 25 of the Criminal Code in deploying the conducted energy weapon in these circumstances. That is a legal determination properly left to the Criminal Justice Branch of the Ministry of Attorney General, and to the courts. Indeed, it is not open to a provincial commission of inquiry to make findings of criminal or civil liability, and I have no intention of doing so.

Having said that, I think it is appropriate for a commission of inquiry to go beyond a mere recitation of the facts and to analyze the officers’ actions in the context of the factual circumstances they faced, the training they had received, and the RCMP’s policies under which they operated. I am authorized to make findings of misconduct if I consider it necessary to do so and to make recommendations on any aspect of my mandate. Analyzing the officers’ actions and drawing conclusions from them are prerequisites to these two functions.

In my view, Cst. Millington was not justified in deploying the conducted energy weapon against Mr. Dziekanski, given the totality of the circumstances he was facing at that time. Similarly, Cpl. Robinson was not justified in instructing him to deploy the weapon. Further, I do not believe that either of these officers honestly perceived that Mr. Dziekanski was intending to attack them or the other officers. I have reached these conclusions for the following reasons.

First, both Cst. Millington and Cpl. Robinson cited Mr. Dziekanski’s stepping forward as one of the justifications for deploying the weapon. I have previously concluded that Mr. Dziekanski did not step forward, and I do not believe that either officer honestly perceived that he did so.

Second, two of the use-of-force experts, Sgt. Fawcett and Cpl. Gillis, testified that when Mr. Dziekanski picked up the stapler, held it in his right fist, and started advancing toward the officers, he displayed combative behaviour, and assuming that Cst. Millington perceived this as a threat to the officers, his deployment of the weapon was consistent with training. Since I have concluded that Mr. Dziekanski did not advance toward the officers and that I do not believe that Cst. Millington and
Cpl. Robinson honestly perceived that he did so, one of the crucial assumptions underlying their opinions has not been established, which means that I should place significantly less reliance on their opinions on this issue.

Third, I summarized the testimony of Sgt. Fawcett and Cpl. Gillis in considerable detail earlier in this part, and have since reviewed their evidence with great care. In his written opinion, Sgt. Fawcett concluded, “The officers’ actions were consistent with their Common Law duties, various Criminal Code (Canada) provisions and RCMP policy and training.” Similarly, Cpl. Gillis testified that Cst. Millington responded consistent with his training and with an industry standard; there was nothing that he did wrong in this incident.

Both officers applied what I will call a mechanistic approach to the incident. For example, Sgt. Fawcett testified that Mr. Dziekanski had violently damaged property before they arrived. They initially attempted to communicate with him using Officer Presence and Communication; perceived him to be aggressive, combative, and agitated; triangulated on him in order to reduce his options and to force him to choose which officer he will attack; and commanded him to place his hands on the counter. He armed himself with a stapler, which they believed he would use as a weapon, and displayed assaultive behaviour. They increased the precautionary gap because of his pre-assaultive cues and precluded Physical Control because Mr. Dziekanski was armed and had previously demonstrated violence. The use of other Intermediate Weapons could be precluded as ineffective or inappropriate, and it was reasonable to consider use of the conducted energy weapon given the dispatch information of an intoxicated, aggressive, and violent male.

I do not find this “one step led to the next” analysis particularly helpful, in part because it focuses exclusively on Mr. Dziekanski’s behaviours (rather than viewing the incident as a “dance” between him and the officers, as Dr. Webster described it), and also because I do not agree with Sgt. Fawcett’s interpretation of some of the events. For example, I do not think that the Pritchard video supports a perception by the officers that Mr. Dziekanski was aggressive or combative. Further, much of Sgt. Fawcett’s analysis is premised on Mr. Dziekanski’s allegedly violent behaviour prior to the arrival of the officers. While it is true that Mr. Dziekanski had damaged some computer equipment and had thrown a small folding table against a glass partition, he did not display aggression toward anyone, and in any event, he showed no signs of aggression or hostility to the officers. Sgt. Fawcett’s evaluation of the officers’ conduct does not appear to be based on an accurate assessment of the circumstances they found upon their contact with Mr. Dziekanski, but upon the information contained in the dispatch.

Fourth, Sgt. Fawcett and Cpl. Gillis led me to believe that their use-of-force analysis was the complete paradigm within which an officer’s conduct should be evaluated. While I recognize that there are Officer Presence and Communication aspects of the model, the model is in my view principally a force-centric model — it invites officers to evaluate the situations they face and to make their risk assessments with a “what level of force should I respond with in order to control the situation” analysis.
Sgt. Fawcett gave no indication that his analysis of an officer’s conduct would be any different if the subject were emotionally disturbed or mentally ill. Cpl. Gillis told me there is a professional expectation that an officer will be empathetic to the situation that a subject finds himself in, but that does not preclude the officer’s duty to act, to resolve the situation, or to establish a degree of control. He acknowledged that de-escalation techniques and verbal crisis-intervention matters form part of recruits’ use-of-force training and advanced field training. However, he emphasized that he was a subject matter expert in use of force and that the RCMP has a different subject matter expert in relation to mental health crisis intervention training, as though the two are quite discrete and the latter plays no part in his analysis of use of force.

I reject that type of compartmentalization. The RCMP’s IM/IM (Exhibit 91) includes both. For example, the sixth principle underlying the model states, “The best strategy is to utilize the least amount of intervention to manage the risk.” In making risk assessments, officers are taught that one of the factors to be considered is “the emotional state of individuals involved.” One of the response options available to officers (depending on the outcome of their risk assessment) is “verbal intervention,” which includes consideration of crisis intervention techniques, verbal and non-verbal communication, anger management, and conflict resolution. It is recommended that officers be patient, be prepared to adapt to diverse people’s needs and behaviours, be open and non-defensive, and be empathetic. One of the non-verbal communication skills recommended, as appropriate, is to “sit to indicate you are in no hurry.”

Fifth, in my view, neither Cst. Millington nor Cpl. Robinson carried out an appropriate reassessment of risk immediately before deployment of the conducted energy weapon. While the initial dispatch information gave them reason to believe that they might be dealing with a possibly intoxicated man who was damaging property, the circumstances they were faced with upon arrival at the International Reception Lounge painted a very different picture, requiring a reassessment of the risk.
Mr. Dziekanski was standing just inside the swinging glass doors with his arms at his side. Although he was clearly disheveled and agitated, he showed no animosity or hostility toward the officers and was compliant with Cst. Millington’s and
Cpl. Robinson’s commands. There was no evidence of broken glass.

From their training they understood the importance of constantly reassessing the risk during an incident and that in assessing risk it was important to take into account the subject’s emotional state. In my view, they did neither. They approached the incident as though responding to a barroom brawl and failed to shift gears when they realized that they were dealing with an obviously distraught traveller. This blinkered approach led to an inappropriately aggressive response by Cpl. Robinson that heightened the intensity of the incident, when a more comprehensive risk assessment would have prompted a qualitatively different response that de-escalated the tension and responded to Mr. Dziekanski’s needs.

While I consider Cst. Millington’s decision to deploy the weapon and Cpl. Robinson’s instruction to do so to have been unjustified in the circumstances, with horrendous consequences, I am equally critical of the policy and training paradigm that fosters such poor decision-making. This case cannot be dismissed as two officers having exercised poor judgement through an incomplete risk assessment that discounted
Mr. Dziekanski’s emotional state. The force-centric analysis they applied to the circumstances they faced appears to me to have been entirely predictable, given the similarly blinkered approach taken by Sgt. Fawcett and Cpl. Gillis in their evaluations and analyses.

I interpret the expert testimony of these two senior and experienced officers as reflecting the use-of-force training that occurs within the RCMP at large and in BC’s municipal police departments. If that is so, it troubles me greatly. It is, without a doubt, essential that officers be trained in the use of force because many situations they face will require the use of force to protect the public and themselves, and to restore public order. But that is only half the story. Many situations can be, and should be, resolved without force, and the skills and techniques that facilitate the non-physical resolution of such incidents should be an integral part of not only use-of-force training but also post-incident evaluations and analyses.

7. Multiple deployments of the weapon, leading to Mr. Dziekanski’s restraint

Cst. Millington initially deployed the conducted energy weapon in probe mode. One of the probes lodged in Mr. Dziekanski’s chest, and it appears likely that the other probe lodged in the lower portion of his shirt, which was flapping loose against his body. The deployment lasted for six seconds (3:49–3:55), which means that Cst. Millington held the trigger down for that entire time period. If he had pulled the trigger and then released it (as officers are trained to do), the weapon would have discharged for only five seconds.

I accept Cst. Baltzer’s testimony that after one second of normal discharge, he heard clacking that indicated intermittent discharge of electrical current thereafter. In other words, the weapon was having some, but not full, effect on Mr. Dziekanski.

The Pritchard video records the sound of this first weapon deployment. Immediately after the commencement of the electrical discharge, Mr. Dziekanski began screaming, with his arms flailing in front of him. He stumbled to his right, away from
Cst. Millington, and he had fallen to the floor by the six-second mark.

One second after completion of the first weapon deployment, Cst. Millington deployed the weapon again, in probe mode. This deployment lasted for five seconds (3:56–4:01), which is consistent with Cst. Millington having pulled the trigger and then releasing it. According to Cst. Baltzer, clacking was heard during the first one-and-a-half to two seconds (indicating intermittent discharge of the electrical current), but not thereafter (indicating that Mr. Dziekanski would have felt the effects of the electrical current). During this time period, the Pritchard video shows Mr. Dziekanski 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, which several witnesses described as “turtling.” The officers moved in to surround Mr. Dziekanski during this period, but no one actually took steps to restrain him.

The weapon data download shows that there was a 12-second break after completion of the second deployment, before Cst. Millington deployed the weapon a third time in probe mode. During that interval, the Pritchard video shows Mr. Dziekanski continuing to scream and “turtle” around on the floor and three of the officers moving in and attempting to restrain him.

During this 12-second interval, Cpl. Robinson instructed Cst. Millington to deploy the conducted energy weapon again, which he did. This third deployment lasted for five seconds (4:13–4:18), which is consistent with Cst. Millington having pulled the trigger and then releasing it. According to Cst. Baltzer, no clacking sound was heard, which indicates that Mr. Dziekanski would have felt the full effect of the electrical current for the full five seconds. During this period, the Pritchard video shows the three officers struggling to restrain Mr. Dziekanski.

After a four-second break, Cst. Millington deployed the weapon a fourth time, this time in push-stun mode. According to Cst. Baltzer, this deployment lasted for nine seconds (4:22–4:31), but he could not determine whether there was any intermittent discharge. I accept Cst. Millington’s testimony that he deployed it against
Mr. Dziekanski’s upper back shoulder area for pain compliance purposes, to persuade Mr. Dziekanski to let the officers pull his arms behind his back and handcuff him. During this period, the Pritchard video is partially obscured by people walking in front of the camera, but one can still see the officers struggling with Mr. Dziekanski, who is making guttural sounds.

After a two-second break, Cst. Millington deployed the weapon a fifth time, again in push-stun mode. According to Cst. Baltzer, this deployment lasted for six seconds (4:33–4:39), but he could not determine whether there was any intermittent discharge. Cst. Millington testified that he had no recollection of this deployment. During this period, the Pritchard video is again partially obscured by people walking in front of the camera, but one can still see the officers struggling with Mr. Dziekanski.

Between 4:50 and 5:00, the sounds coming from Mr. Dziekanski became more moderated, and the struggle wound down. I conclude that it was during this period that the handcuffs were applied.

In their police notes and statements to the IHIT investigators, and in their testimony at our evidentiary hearings, the four officers described some aspects of these events differently from what one sees on the video:

As discussed earlier, in my view, the initial deployment of the conducted energy weapon was not justified, given the totality of the circumstances facing the officers. Arguably, all subsequent deployments were thus unjustified. Nevertheless, I think it is important to review, and comment on, the conduct of the officers following the initial deployment:

The initial claims by all four officers in their police notes and statements to IHIT investigators that they wrestled Mr. Dziekanski to the ground has been shown, by the Pritchard video, to be untrue. These were either innocent inaccuracies by the four officers or deliberate misrepresentations of what had happened. In my view, they were the latter, and they were made for the purpose of justifying their actions. But for the Pritchard video, we would likely never have learned what really happened, and these officers’ revisionist accounts would have lived on.

Finally, I reject Cpl. Robinson’s testimony that he must have told Cst. Millington, “Hit him again” while Mr. Dziekanski was still standing. There is no credible evidence corroborating this version of events.

8. Attending to Mr. Dziekanski and the arrival of the Richmond firefighters

We are largely dependent on the testimony of the four officers to determine what happened between the times that Mr. Dziekanski was handcuffed and the arrival of the Richmond firefighters. From this evidence, I conclude that Mr. Dziekanski was initially in the prone position (i.e., on his stomach). Within five to ten seconds after being handcuffed he stopped kicking his legs, and he lay motionless while breathing heavily. According to several officers, he was moved into a partial recovery position. Cst. Rundel assisted with a pat-down and quick search of Mr. Dziekanski, and his wallet was found in his jacket.

Cst. Bentley testified that he observed Mr. Dziekanski go unconscious, although he continued to breathe quite loudly. He immediately called dispatch to request that paramedics attend on a routine basis, but shortly thereafter he upgraded the call to Code 3 when he saw Mr. Dziekanski’s face turn blue. He realized that they were facing a medical emergency and that cardiopulmonary resuscitation might be required, but took no steps to have a defibrillator brought to the scene, thinking that Cpl. Robinson would take the initiative.

Cst. Rundel did not see any of the other officers check Mr. Dziekanski’s pulse, but he did see Cpl. Robinson kneel down next to Mr. Dziekanski and assumed it was to monitor his breathing. Cst. Bentley did not see any of the other officers check
Mr. Dziekanski’s pulse or breathing, but he did see a man from Airport Operations
(Mr. Enchelmaier) check the carotid pulse.

I recognize that Constables Rundel and Bentley had only a limited opportunity to observe, since Cpl. Robinson instructed both of them to go out to their police vehicles to retrieve hobbles and a camera, respectively.

Cst. Millington did not check Mr. Dziekanski’s pulse or breathing and did not know whether he was conscious. In his police notes he recorded that he observed Cpl. Robinson check Mr. Dziekanski’s pulse every couple of minutes and that Mr. Dziekanski had a pulse, but in his testimony he said only that he asked Cpl. Robinson if
Mr. Dziekanski was breathing, and he replied, “Yes.”

Cpl. Robinson testified that he constantly monitored Mr. Dziekanski’s breathing until the firefighters arrived, by placing his hand on Mr. Dziekanski’s chest, observing his mouth for breathing, and placing his head close to Mr. Dziekanski’s head so he could hear his breathing. Initially he heard what he thought was snoring, which alerted him to Mr. Dziekanski being unconscious. He was aware that his ear had gone blue; his medical training told him that this could be a medical issue of breathing or bruising. He concluded that it was the latter, since he had established that Mr. Dziekanski was breathing. He testified that he checked Mr. Dziekanski’s carotid pulse a couple of times, removing his glove each time.

Mr. Enchelmaier, whose testimony I summarized in Part 5, told me that within seconds of Mr. Dziekanski going unconscious, he and Cpl. Robinson moved him into the recovery position. He observed Cpl. Robinson check Mr. Dziekanski’s carotid pulse (with his gloves on) and check his breathing. He also agreed that, to the best of his recollection, Cpl. Robinson leaned over Mr. Dziekanski and conducted an assessment of him until the firefighters arrived. He testified that he (Mr. Enchelmaier) checked Mr. Dziekanski’s carotid pulse and breathing three times. The third time, about two minutes before the firefighters arrived, Mr. Dziekanski had a clear and slow pulse and slow, low breathing. He did not notice Mr. Dziekanski’s colour going blue and then grey until after the paramedics arrived.

The three firefighters who attended the scene all testified that when they entered the International Reception Lounge, Mr. Dziekanski was lying, handcuffed, in the prone position, not in a partial recovery position, with his head turned to the left. Captain Graeme testified that three officers were standing about 10 metres away from
Mr. Dziekanski, and the fourth was standing alone about five metres away. Firefighter Duranleau testified that they were standing 10–15 feet away and no one was touching him. Firefighter Cameron testified that he saw two or three officers standing by
Mr. Dziekanski’s feet, but no one was at his head.

9. The Richmond firefighters’ assessment

As the three Richmond firefighters entered the International Reception Lounge, one of the police officers told Captain Graeme that the conducted energy weapon had been used on Mr. Dziekanski three times. Captain Graeme asked one of the officers to remove the handcuffs so that they could perform a proper assessment. The officer refused, saying that Mr. Dziekanski had been violent, which frustrated Captain Graeme. Based on the testimony of Cst. Rundel and Cst. Millington, I am satisfied that it was Cpl. Robinson who refused. Cpl. Robinson testified that he had no recollection of such a conversation, but acknowledged that he might have done so.

Captain Graeme instructed Firefighter Duranleau to begin her assessment. She spoke to Mr. Dziekanski but got no response, and performed a pain stimulus check on his neck and again got no response, from which she concluded that he was unconscious. She could see no evidence that he was breathing, and could not get a radial or carotid pulse. No one told her that a conducted energy weapon had been used multiple times or that Mr. Dziekanski had turned blue.

Firefighter Cameron also determined that Mr. Dziekanski was unconscious and not breathing. Anxious to get him onto his back in case they needed to perform CPR or use an automated external defibrillator, he told one of the officers that he needed the handcuffs removed, but his request was refused.

Both Captain Graeme and Firefighter Cameron were surprised that the Airport’s Emergency Response Service was not on scene when they arrived — they both testified that ERS always arrived before the firefighters. On this issue I prefer the testimony of Captain Graeme and Firefighter Cameron over the testimony of Robert Ginter, the Airport response coordinator, who told me (see Part 5) that the response time of ERS and the firefighters would have been about equal.

Should the handcuffs have been removed at the firefighters’ request? On the one hand, the firefighters clearly wanted them removed so that Firefighter Duranleau could perform her assessment and so that, according to Firefighter Cameron, they would be in a position to perform CPR or use the automated external defibrillator if either was necessary. None of the firefighters felt that their safety was at risk. On the other hand, Cpl. Robinson testified that he believed that Mr. Dziekanski had been violent, and might regain consciousness and be violent again, as Cpl. Robinson had seen with other subjects. According to Cpl. Robinson, he knew that Mr. Dziekanski was unconscious, but believed he was breathing and had a pulse. He was aware that Mr. Dziekanski’s ear was blue, but attributed that to bruising, not a breathing problem.

In my view, Cpl. Robinson’s refusal to remove the handcuffs can only be justified on the basis of a risk assessment made at the time of the firefighters’ request. How serious a risk was there that Mr. Dziekanski would regain consciousness and come up fighting? Earlier in this part, I stated that I rejected Cpl. Robinson’s testimony that he constantly monitored Mr. Dziekanski until the firefighters arrived, so he had no basis for assuming that he was still breathing and had a pulse. The unanimous testimony of the three firefighters satisfies me that Mr. Dziekanski had returned to the prone position before their arrival, which further supports my view that Cpl. Robinson did not constantly monitor Mr. Dziekanski.

Taking all these factors into account, Cpl. Robinson did not, in my view, have sufficient up-to-date information to justify refusing to remove the handcuffs for the firefighters. I reach this conclusion without relying on the important evidence that Mr. Dziekanski’s face had already turned blue. While Cst. Bentley said that he saw
Mr. Dziekanski’s face turn blue 5–10 seconds after he lapsed into unconsciousness, there is no evidence that he communicated this to Cpl. Robinson, who testified that he only saw that Mr. Dziekanski’s ear had turned blue, which he attributed to bruising.

In Part 9, I will discuss in more detail the need for the Vancouver Airport Authority, the RCMP, Richmond Fire-Rescue, and the BC Ambulance Service to work together in formulating a plan of action for dealing with police use-of-force incidents at the Vancouver International Airport that evolve into medical emergencies.

10. Arrival of the BC Ambulance Service paramedics

When the two basic life support paramedics arrived on the scene, one of them saw immediately that Mr. Dziekanski’s face was bluish in colour and cyanotic. The other paramedic saw, from 40 feet away, that he was very cyanotic and lifeless. When they asked Cpl. Robinson to remove the handcuffs, he initially told them that
Mr. Dziekanski had been quite aggressive. However, when the paramedics repeated their request in a firm tone, the handcuffs were removed.

When the two paramedics rolled Mr. Dziekanski onto his back, one of them commented about his colour. His eyes were closed, his lips and tongue were blue, he was not breathing, and he had no carotid pulse. Although the paramedic thought that Mr. Dziekanski was dead, he ordered the firefighters to start oxygen, inserted an oral airway, and instructed Firefighter Duranleau to begin chest compressions. The automated external defibrillator was attached, but it advised “no shock,” which meant that there was no shockable rhythm.

About two minutes after their arrival, two advanced life support paramedics arrived. They connected their manual cardiac monitor, which confirmed that Mr. Dziekanski was asystole. Nevertheless, they started to initiate intravenous treatment and medications, and endotracheal intubation. After 20 minutes of resuscitation attempts, one of the paramedics consulted by phone with a Richmond physician, who gave orders to discontinue resuscitation, at which point the paramedic pronounced
Mr. Dziekanski dead.

11. Post-incident discussions with the other officers

At about 2:30 a.m., Cpl. Robinson instructed Constables Rundel, Bentley, and Millington to return to the Airport sub-detachment office and to wait for Integrated Homicide Investigation Team officers to attend, when they would be interviewed. Cpl. Robinson testified that he would have told them not to discuss the incident among themselves until after they gave their statements to the IHIT investigators. IHIT investigators interviewed all three officers later that morning.

All four officers remained on active duty at the Airport sub-detachment for several weeks after the Dziekanski incident, and they worked together on some shifts during that period. In late October 2007 the four officers participated in a critical incident debriefing session. Three of them also attended a training course together.

Only one officer (Cst. Bentley) testified that during the critical incident debriefing session, everyone gave his or her version of the events that transpired that night. In all other respects, all four officers testified either that there was never any discussion between or among them about what had happened at the Airport or that they had no recollection of any such discussion. They only talked about their feelings, and the trauma they were going through.

Counsel for one participant alleged, during the evidentiary hearings and in his closing submissions, that following the incident at the Airport the officers discussed what had happened at the Airport and that they collaborated to fabricate their story in the expectation that it would justify their conduct to their superiors. This is a serious allegation that requires consideration. On the one hand, we have the evidence of Staff Sgt. Wright that he instructed Cpl. Robinson to tell the three constables to “sit down, shut up, and make notes, and not talk to one another or talk to anybody else.” Cpl. Robinson testified that he would have told the three constables not to discuss the incident among themselves until after they had given their statements to the IHIT investigators. We have the sworn testimony of the four officers that they did not discuss the incident among themselves before giving their statements to the IHIT investigators.

On the other hand, the officers did have an opportunity (i.e., several hours) to discuss the incident among themselves, while at the Airport and later at the sub-detachment office, before the IHIT investigators interviewed them. If they felt that they had acted inappropriately, they also had a motive to collaborate and fabricate a story in order to justify their conduct. Finally, there are similarities in the language the officers used about their interaction with Mr. Dziekanski in their statements to IHIT investigators. For example:

Three questions arise. Did the officers discuss the incident? If they did, did that discussion lead to them unintentionally giving similar accounts to the IHIT investigators (what lawyers and judges refer to as “innocent contamination”)? Alternatively, did their discussions lead to a decision to collaborate and fabricate a story to justify their conduct (what lawyers and judges call “collusion”)?

I will address those three questions in reverse order. When some of the officers’ statements are compared, several concerns arise. The statements quoted above tend to overstate or inaccurately describe Mr. Dziekanski’s actions in a manner favourable to the officers (i.e., that might justify deployment of the conducted energy weapon). Also, there is some similarity in terminology used (e.g., “wrestled him to the ground”). On the other hand, in most instances, not all the officers used similar language to describe an event, and in several instances the similarities are limited to a description of a particular incident (e.g., advancing toward the officers) rather than the use of identical terminology.

An allegation of collusion is not to be taken lightly — the evidence would have to satisfy me to a high degree of certainty before I would make such a finding. Applying that standard, I am not satisfied that the evidence before me is sufficient to conclude that the four officers colluded to fabricate a story to justify their conduct.

It is, of course, possible that if the officers did discuss the incident, they may have innocently or subconsciously modified the accounts they gave to the IHIT investigators in order to accord with their colleagues’ accounts. Many judges have witnessed such innocent contamination. In order to determine whether that occurred in this case, I first must decide whether the officers did in fact discuss the incident, in spite of their sworn testimony to the contrary.

Earlier in this part, I made findings of fact and conclusions that were critical of the four officers. For example:

These findings of fact and conclusions satisfy me of their willingness to repeatedly misrepresent what happened at the Airport for self-serving purposes, to mislead the IHIT investigators, and to continue to do so in front of this Commission, even in the face of such incontrovertible evidence as the Pritchard video. I had ample opportunity to observe the four officers during their lengthy examination at our evidentiary hearings. They stubbornly stuck to their version of events long after it had been shown to be unbelievable, and in their answers they were, at times, evasive. This assessment of them, which I must say I have reached reluctantly after careful consideration (but with a high degree of certainty), undermines their credibility in my eyes.

Taking into account their 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 conclude that the four officers 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 to portray Mr. Dziekanski’s actions in an unfairly negative light and their own actions in an unfairly positive light.

12. Cst. Millington’s completion of the conducted energy weapon usage report

Earlier in this part, I was critical of the imprecision with which the officers prepared their police notes and gave their statements to the IHIT investigators. In some instances, I concluded that these were not innocent inaccuracies, but deliberate misrepresentations of what had happened, made for the purpose of justifying their actions. I have reached a similar conclusion respecting Cst. Millington’s completion of the usage report that he was required to fill out after deployment of the conducted energy weapon. I quoted the entire CEW usage report earlier in this part, when summarizing Cst. Millington’s evidence.

In his testimony, Cst. Millington agreed that several of the statements he made in the usage report were inaccurate, including the following:

In addition, Cst. Millington stated in the usage report that Mr. Dziekanski, while holding the stapler, “aggressively moved towards members on scene.” I have earlier concluded that Mr. Dziekanski did not move toward the members while holding the stapler.

It is noteworthy that RCMP policy required that a CEW usage report be completed before the end of the officer’s shift. In this case, Cst. Millington completed the report several days later, which provided him with ample time for reflection about what had actually happened, and for precision in recording the events surrounding deployment of the conducted energy weapon.

To repeat what I said earlier, I think that the public is entitled to expect that officers involved in a serious investigation, especially a police-related death, will apply care and professional judgement in how they record their recollection of important events. In his completion of this form, Cst. Millington failed this test miserably. He consistently misrepresented and overstated Mr. Dziekanski’s behaviours and actions in a manner prejudicial to Mr. Dziekanski, and chose self-serving language for the purpose of justifying his actions. These misstatements portrayed Mr. Dziekanski as combative — behaviour which, if true, would have justified deployment of the conducted energy weapon.

In my view, Cst. Millington could not have so fundamentally mis-recalled the pivotal events of the incident when completing the usage report. To the contrary, I am satisfied that these were deliberate misstatements of Mr. Dziekanski’s actions and behaviours, made for the purpose of justifying his deployment of the weapon. But for the Pritchard video, this revisionist account of the incident would have lived on.

13. Concluding comments

Although it has taken many pages to provide a complete accounting of Mr. Dziekanski’s interaction with the four RCMP officers, this tragic encounter can be summarized much more succinctly.

When the officers arrived, they found Mr. Dziekanski behind the swinging glass doors leading into the International Reception Lounge. Although unkempt, sweating, and breathing heavily, he was standing calmly with his hands at his side. Cst. Bentley greeted him in an entirely appropriate manner but, due to the language barrier, got no response. When Cst. Millington asked for his passport or identification,
Mr. Dziekanski apparently attempted to comply by bending down toward his luggage.

Even when Cpl. Robinson intervened and ordered Mr. Dziekanski in an authoritative, stern voice to stop going toward his luggage, Mr. Dziekanski complied by returning to an upright stance, with his arms at his side, engaging in eye contact with the officers. His statement, “Leave me alone, have you lost your minds?” denotes frustration, presumably from receiving contradictory demands. He threw up his arms, lowered his head, and turned away from the officers. None of those actions breached any of the officers’ directions to him.

As Mr. Dziekanski did so, Cpl. Robinson followed close behind, pointing toward the counter. Mr. Dziekanski moved to the counter, another act of compliance.
Mr. Dziekanski picked up a stapler in his right hand and, facing the officers, held it in his hand at chest height. In less than five seconds, Cst. Millington deployed the conducted energy weapon against him, even though Mr. Dziekanski had not screamed at, waved the stapler at, or moved toward the officers. No command had been given to drop the stapler, and no warning had been given about the weapon being deployed.

The Pritchard video describes, more accurately and graphically than I can,
Mr. Dziekanski screaming in agony, stumbling to his right, falling to the floor, all during the first six-second deployment. During the second deployment, some of which was intermittent, Mr. Dziekanski is seen on the floor, screaming, with his body curled up, his arms and hands held tightly against his chest, his legs thrashing, and his body moving around in a circular motion. The weapon is deployed a third time in probe mode, and then twice in push-stun mode before handcuffs are applied.

What had begun mere seconds earlier as appropriate attempts at contact and communication by Cst. Bentley and Cst. Millington started to go off the rails with
Cpl. Robinson’s totally unwarranted intervention, and culminated with
Cst. Millington’s unjustified multiple deployments of the weapon (which Cpl. Robinson sanctioned) against a man who was just standing there. These actions by
Cst. Millington and Cpl. Robinson were outrageous, and I condemn those actions in the strongest possible terms.

These two officers grossly misread the situation they were facing. They resorted to force when their training and common sense dictated the employment of de-escalation techniques to calm a distraught traveller.

In my 23 years as a criminal defence lawyer and prosecutor, and in my 16 years as a trial and appellate judge, I have had professional dealings with hundreds, if not thousands, of RCMP officers. Those dealings reinforced the respect I have had for the Mounties since my childhood. The RCMP is an iconic institution in Canada, and for nearly a century its officers have served their country and its citizens with integrity and bravery, often in harsh and dangerous circumstances.

The unprofessional manner in which Cst. Millington and Cpl. Robinson dealt with
Mr. Dziekanski, and all four officers’ less-than-forthright accounting for their conduct, has had repercussions that extend far beyond this one incident and well beyond this province — Mr. Dziekanski’s death appears to have galvanized public antipathy for the Force and its members. That is regrettable. As I have said several times in this report and in my earlier one, the most important weapon in the arsenal of the police is public support.

During the past few years, several other high-profile incidents appear to have undermined public confidence in the RCMP. I cannot comment on these other matters, but I can comment about this one tragic case. At its heart, it is the story of shameful conduct by a few officers. It ought not to reflect unfairly on the many thousands of other RCMP officers who have, through years of public service, protected our communities and earned a well-deserved reputation in doing so.

1At the time of the Dziekanski incident, Cst. Rundel had 18 months’ experience, after completing his training at Depot and his six months’ recruit field training. When he testified, he was 48 years old.

4References to the Pritchard video refer to a video recording on the incident (in three segments) taken by a civilian witness, Paul Pritchard, who was waiting in the public Meeting Area. When referring to events recorded on the Pritchard video, I will refer to the minutes and seconds recorded on that video. According to the synchronization material prepared by counsel for the Vancouver Airport Authority, the first segment of the Pritchard video began at 1:21:22 a.m. YVR time on October 14, 2007, the second segment began at 1:25:10, and the third segment began at 1:32:10. The four officers arrived on scene during the second segment of the Pritchard video.

14Cst. Bentley received a B.A. degree in Criminology from the University of Windsor in 2004, after which he worked as a Canada Border Services Agency officer, and completed a basic first aid course. He graduated from RCMP Depot training in May 2006 and was assigned to the City of Richmond detachment. He completed the RCMP conducted energy weapon training in July 2007, and was assigned to the Airport sub-detachment in early September 2007.

31Cst. Bentley said that in his notes he stated that he saw Cpl. Robinson monitor or check Mr. Dziekanski’s pulse. He agreed that the note was incorrect.

35Cst. Millington received a Bachelor of Commerce degree from Ryerson University in 2000. He completed his RCMP Depot training in May 2005, and his six-month field training at the City of Richmond detachment in November 2005. He continued at that detachment until July 2006, when he was transferred to the Airport sub-detachment. He completed the conducted energy weapon training program in July 2007, taught by Cpl. Gillis. He had completed basic first aid training before joining the RCMP.

54Cst. Millington told me that the RCMP’s staff relations representative told him that he was entitled to seek legal counsel before giving a statement to the IHIT investigators. He felt that he had acted within his training, and chose not to seek legal advice before giving any of the statements.

62Cpl. Robinson was, at the time of his testimony, 38 years old. He grew up in the Lower Mainland and obtained a Bachelor of Arts degree from Trinity Western University in 1994. He graduated from RCMP Depot training in July 1996, and served for seven years in the Chase, BC, detachment. In 2003 he was transferred to the Merritt detachment and, while there, was promoted to Corporal. At his request he was transferred to the City of Richmond detachment in August 2005, and then to the Airport sub-detachment in April 2007, where he served until November 2007.

84The circumstances surrounding the late disclosure of this document can be found in the Transcript, June 19, 2009.

93Firefighter Duranleau’s handwritten notes, made later that morning, also described Mr. Dziekanski as being in the prone position.

95Later in his testimony, Captain Graeme said he did not think it was the Black officer who said this.

96Later in his testimony, Captain Graeme said he did not think it was the Black officer who said this.

99In late 2007, the BC Ambulance Service adopted a change in terminology, from “basic life support” to “primary care” paramedics.

116Pixels are picture elements, similar to dots in a photographic image. Each image referred to by
Mr. Fredericks has 640 pixels from left to right and 480 pixels from top to bottom.

120To test this methodology, Mr. Fredericks also measured the distance between two lines on the wall in the background, and found that, at the end of the three-second segment, the space between the lines reduced to 77.28 percent of the space at the beginning. Since this was less than one percent different from the reduction in the length of the counter, he concluded that there was a margin of error of less than one percent.

Thomas R. Braidwood, QC, Commissions of Inquiry

A. INTRODUCTION

B. THE RCMP OFFICERS

1. Constable Rundel1

a. Responding to the call for assistance

b. Entering the secure area

c. Deployment of the conducted energy weapon

d. Restraining Mr. Dziekanski

e. Attending to Mr. Dziekanski

f. Arrival of the Richmond firefighters

g. Arrival of the BC Ambulance Service paramedics

h. Post-incident discussions with the other officers

i. Post-incident reconsiderations of the officers’ actions

2. Constable Bentley14

a. Responding to the call for assistance

b. Entering the secure area

c. Deployment of the conducted energy weapon

d. Restraining Mr. Dziekanski

e. Attending to Mr. Dziekanski

f. Arrival of the Richmond firefighters

g. Post-incident discussions with the other officers

h. Post-incident reconsiderations of the officers’ actions

3. Constable Millington35

a. Responding to the call for assistance

b. Entering the secure area

c. Deployment of the conducted energy weapon

d. Restraining Mr. Dziekanski

e. Attending to Mr. Dziekanski

f. Arrival of the Richmond firefighters

g. Accuracy of his notes and statements

h. Post-incident discussions with the other officers

i. Completion of the conducted energy weapon usage report

j. Post-incident reconsiderations of the officers’ actions

4. Corporal Robinson62

a. Responding to the call for assistance

b. Entering the secure area

c. Deployment of the conducted energy weapon

d. Restraining Mr. Dziekanski

e. Attending to Mr. Dziekanski

f. Arrival of the Richmond firefighters

g. Arrival of the BC Ambulance Service paramedics

h. Accuracy of Cpl. Robinson’s notes and statements

i. Post-incident discussions with the other officers

j. Post-incident reconsiderations of the officers’ actions

5. Staff Sergeant Douglas Wright

6. Chief Superintendent Bent’s November 5, 2007, e-mail

a. Chief Superintendent Richard Bent

b. Assistant Commissioner Al Macintyre

c. Superintendent Wayne Rideout

C. RICHMOND FIRE-RESCUE

D. BC AMBULANCE SERVICE

1. Basic Life Support paramedics

2. Advanced Life Support paramedics

E. EXPERT TESTIMONY

1. Video analysis experts

a. Grant Fredericks

b. Mark Hird-Rutter

c. Duane McInnis

2. Conducted energy weapon data download

3. Translation of Mr. Dziekanski’s statements from Polish into English

4. Use-of-force experts

a. Sergeant Brad Fawcett

b. Corporal Gregg Gillis

c. Orville Nickel

d. Dr. Michael Charles Webster

F. FINDINGS OF FACT AND CONCLUSIONS

1. Responding to calls for assistance

2. The officers’ initial observations of Mr. Dziekanski

3. Entering the secure area

4. Mr. Dziekanski’s movement toward the counter

5. Picking up the stapler

a. Whether Mr. Dziekanski brandished the stapler

b. Whether Mr. Dziekanski took one or more steps toward one or more of the officers

6. Deployment of the conducted energy weapon

7. Multiple deployments of the weapon, leading to Mr. Dziekanski’s restraint

8. Attending to Mr. Dziekanski and the arrival of the Richmond firefighters

9. The Richmond firefighters’ assessment

10. Arrival of the BC Ambulance Service paramedics

11. Post-incident discussions with the other officers

12. Cst. Millington’s completion of the conducted energy weapon usage report

1. Constable Rundel^¹

2. Constable Bentley^¹⁴

3. Constable Millington^³⁵

4. Corporal Robinson^⁶²