THOMAS R. BRAIDWOOD, Q.C., COMMISSIONS OF INQUIRY

PURPOSE AND TERMS OF REFERENCE

Definitions

1 In this Order:

“Conducted energy weapon” means a weapon or device commonly referred to as a TASER®;

“Mr. Dziekanski” means Mr. Robert Dziekanski, who died at the Vancouver International Airport on October 14, 2007;

“RCMP” means the Royal Canadian Mounted Police Force continued under the Royal Canadian Mounted Police Act (Canada).

Establishment of two commissions

2 (1) A study commission, called the Thomas R. Braidwood, Q.C., Study Commission, is established under section 2 of the Public Inquiry Act to inquire into and report on the use of conducted energy weapons by the following in the performance of their duties and the exercise of their powers:

(a) constables of police forces of British Columbia, other than the RCMP;

(b) sheriffs under the Sheriff Act;

(c) authorized persons under the Correction Act.

(2) A hearing and study commission, called the Thomas R. Braidwood, Q.C., Hearing and Study Commission, is established under section 2 of the Public Inquiry Act to inquire into and report on the death of
Mr. Dziekanski.

(3) Thomas R. Braidwood, Q.C., is the sole commissioner of each of the commissions established under this section.

Purposes of the commissions

3 (1) The purpose of the study commission established under section 2 (1) is to make recommendations respecting the appropriate use of conducted energy weapons by constables, sheriffs and authorized persons referred to in section 2 (1), in the performance of their duties and the exercise of their powers.

(2) The purposes of the hearing and study commission established under section 2 (2) are as follows:

(a) to provide Mr. Dziekanski’s family and the public with a complete record of the circumstances of and relating to Mr. Dziekanski’s death;

(b) to make recommendations referred to in section 4 (2) (c).

Terms of reference

4 (1) The terms of reference of the inquiries to be conducted by the study commission established under section 2 (1) are as follows:

(a) to review current rules, policies and procedures applicable to constables, sheriffs and authorized persons referred to in section 2 (1) in respect of their use of conducted energy weapons and their training and re-training in that use;

(b) to review research, studies, reports and evaluations respecting the safety and effectiveness of conducted energy weapons when used in policing and law enforcement in British Columbia and in other jurisdictions;

(c) to make recommendations respecting

(i) the appropriate use of conducted energy weapons by constables, sheriffs and authorized persons referred to in section 2 (1) in the performance of their duties and the exercise of their powers, and

(ii) the appropriate training or re-training of those constables, sheriffs and authorized persons in that use of conducted energy weapons;

(d) to submit a report to the Attorney General on or before June 30, 2008*.

(2) The terms of reference of the inquiries to be conducted by the hearing and study commission under section 2 (2) are as follows:

(a) to conduct hearings, in or near the City of Vancouver, into the circumstances of and relating to Mr. Dziekanski’s death;

(b) to make a complete report of the events and circumstances of and relating to Mr. Dziekanski’s death, not limited to the actual cause of death;

(c) to make recommendations the commissioner considers necessary and appropriate;

(d) to submit a report to the Attorney General on or before a date to be determined by the Attorney General in consultation with the Commissioner.

* Amended by OIC 882/2008 to June 30, 2009.

APPENDIX B

COMMISSION PERSONNEL

Commissioner

Hon. Thomas R. Braidwood, Q.C.

Counsel

Art Vertlieb, Q.C., Commission Counsel

Patrick McGowan, Associate Commission Counsel

Keith Hamilton, Q.C., Policy Counsel

Sharon Samuels, Research Counsel

Dolores Holmes, Advisor

Staff

Chan, Jennifer, Legal Researcher

Cheung, Christine, Administration Assistant

Cutler, Erin, Legal Researcher

Flannigan, Jenna, Legal Researcher

Lunn, John, Hearing Coordinator

McKeachie, Jessica, Legal Student Assistant

Perra, Leo, Executive Director

Ryan, Cynthia, Research Librarian and Documents Manager

Stooshnov, Cathy, Manager, Finance and Administration

Contractors

Kingdon, Scott, Webmaster

Freimond, Chris, Media Communications

McEachern, Melanie, Transcription and Media Services

Rainaldi, Linda, Editor

Rowlands, Christine, Proofreader

Appendix C

LIST OF SUBMITTERS

Appendix D

LIST OF WITNESSES

Appendix E

PRACTICE AND PROCEDURE DIRECTIVE
FOR EVIDENTIARY HEARINGS

[AUTHORIZED BY PUBLIC INQUIRY ACT, S. 9(1)]

AUGUST 12, 2008

Definitions

1 In this directive,

“Act” means the Public Inquiry Act, S.B.C. 2007, c. 9,

“Commission” means the hearing and study commission established under section 2(2) of the Thomas R. Braidwood, Q.C., Commissions of Inquiry Order,

“record” includes books, documents, maps, drawings, photographs, letters, vouchers, papers and any other thing on which information is recorded or stored by any means whether graphic, electronic, mechanical or otherwise.

Purpose of the evidentiary hearings

2 The Commissioner will inquire into those matters set out in section 4(2) of the Order establishing the Commission. On the basis of oral and documentary evidence tendered during the evidentiary hearings, the Commissioner will make findings of fact and may make a finding of misconduct against a person or make a report that alleges misconduct by a person. The Commissioner’s findings of fact or findings of misconduct cannot be taken as findings of criminal or civil liability.

Public and media access to evidentiary hearings

3 Subject to Rule 4, the Commission must

(a) ensure that evidentiary hearings are open to the public, either in person or through broadcast proceedings, and

(b) give the public access to information submitted in an evidentiary hearing (see Public Inquiry Act, s. 25).

4 The Commissioner may, by order, prohibit or restrict a person or class of persons, or the public, from attending all or part of an evidentiary hearing, or from accessing all or part of any information provided to or held by the Commission,

(a) if the government asserts privilege or immunity over the information under section 29 of the Act,

(b) for any reason for which information could or must be withheld by a public body under sections 15 to 19 and 21 to 22.1 of the Freedom of Information and Protection of Privacy Act,

(c) if the Commissioner has reason to believe that the order is necessary for the effective and efficient fulfillment of the Commission’s terms of reference (see Public Inquiry Act, s. 15(1)), or

(d) if the Commissioner is satisfied that such an order would make available to the Commission evidence that would otherwise not be available due to a privilege under the law of evidence.

5 In making an order under Rule 4, the Commissioner must not unduly prejudice the rights and interests of a participant against whom a finding of misconduct, or a report alleging misconduct, may be made (see Public Inquiry Act, s. 15(2)).

Video and audio recording of the evidentiary hearing proceedings

6 The Commissioner may impose restrictions on the video and audio recording of the evidentiary hearing proceedings and may, on application, order that there be no video or audio recording of some or all of a witness’s testimony.

Reporting the proceedings

7 The public and media may report the evidentiary hearing proceedings that are open to the public, except for testimony and/or submissions in respect of which the Commissioner has ordered that they shall not be published.

Application to participate in the evidentiary hearings

8 A person may apply to be a participant by applying to the Commission in the manner and form it requires. The application must set out the basis upon which participation is sought, and the extent and nature of the participation sought.

9 The Commissioner may accept an applicant as a participant after considering all of the following:

(a) whether, and to what extent, the person’s interests may be affected by the findings of the commission,

(b) whether the person’s participation would further the conduct of the inquiry,

(c) whether the person’s participation would contribute to the fairness of the inquiry (see Public Inquiry Act, s. 11(4)).

Powers respecting participants

10 Subject to Rule 13, the Commissioner may make orders respecting

(a) the manner and extent of a participant’s participation,

(b) the rights and responsibilities of a participant, if any, and

(c) any limits or conditions on a participant’s participation (see Public Inquiry Act, s. 12(1)).

11 In making an order under Rule 10, the Commissioner may

(a) make different orders for different participants or classes of participants, and

(b) waive or modify one or more of his orders as necessary (see Public Inquiry Act, s. 12(2)).

12 In making an order under Rule 10, the Commissioner must ensure that a participant who responds to a notice under section 11(2) of the Act has a reasonable opportunity to be heard by the Commissioner before the Commissioner makes a finding of misconduct against the participant, or makes a report that alleges misconduct by that participant (see Public Inquiry Act, s. 12(3)).

Rights of participants

13 A participant may

(a) participate on his or her own behalf, or

(b) be represented by counsel or, with the approval of the Commissioner, by an agent (see Public Inquiry Act, s. 13(1)).

14 A participant

(a) has the same immunities as a witness who appears before the court, and

(b) is considered to have objected to answering any question that may

(i) incriminate the participant in a criminal proceeding, or

(ii) establish the participant’s liability in a civil proceeding (see Public Inquiry Act, s. 13(2)).

Confidentiality of records

15 Commission Counsel shall not provide a record to counsel, a participant or a witness until that person has delivered to Commission Counsel a signed undertaking, in a form approved by the Commissioner, that all records disclosed by the Commission will be used solely for the purposes of the Inquiry.

16 Counsel for a participant or a witness shall not provide a record to the participant or witness until the participant or witness has delivered to counsel a signed undertaking, in a form approved by the Commissioner, and counsel has delivered that signed undertaking to Commission Counsel.

17 The Commissioner may:

(a) impose restrictions on the use and dissemination of records,

(b) require that a record that has not been entered as an exhibit in the evidentiary proceedings, and all copies of the record, be returned to the Commission, and

(c) on application, release counsel, a participant or a witness, in whole or in part, from the undertaking in relation to any record, or may authorize the disclosure of a record to another person.

Records

18 A participant must, at the earliest opportunity and in any event at least ten days before using a record in an evidentiary hearing or tendering it as an exhibit, deliver a copy of the record to Commission Counsel.

Public access to records

19 Unless the Commissioner orders otherwise:

(a) a record within the Commission’s control that has not been entered as an exhibit is not available for public inspection or copying, and

(b) a record that has been entered as an exhibit may be inspected by the public and the media. The Commission will determine the circumstances in which a charge will be imposed for copying records.

Applications to the Commissioner

20 A participant may apply to the Commissioner for an order by:

(a) preparing the application in writing,

(b) attaching to the application any supporting materials, and

(c) delivering the application and supporting materials to the Commission by e-mail, to cathy.stooshnov@braidwoodinquiry.ca in Microsoft Word or *.pdf format.

21 An applicant must deliver the application for an order to the Commission at least two days before the application is to be heard.

22 A participant who wishes to receive notice of an application shall provide the Commission with an e-mail address for delivery.

23 The Commission shall promptly deliver the application and supporting materials, by e-mail, to each other participant who has provided the Commission with an email address for delivery.

24 Any other participant may file written materials in relation to an application made under Rule 20.

25 The Commissioner may make an order based on the written material filed or, at his discretion, after hearing oral argument.

Applications for further disclosure of a record

26 A participant may seek disclosure of a record from another person (“record holder”) by asking Commission Counsel, in writing, to use the powers of the Commission to obtain the record.

27 The request must state:

(a) the reasons the participant believes the record holder possesses the record, and

(b) the reasons the participant believes the record is relevant to a matter before the Commission.

28 If Commission Counsel accepts the request, Commission Counsel will attempt to obtain the record.

29 If Commission Counsel rejects the request, Commission Counsel shall notify the participant, and the participant may apply to the Commissioner, in accordance with Rules 20 to 23, for an order respecting the request.

30 When the participant applies to the Commissioner under Rule 29, the Commission shall deliver the application and any supporting materials to the record holder, and to each other participant who has provided the Commission with an e-mail address for delivery.

31 The record holder and any other participant may file written materials in relation to an application made under Rule 29.

32 Unless the Commissioner orders otherwise, the procedures set out in Rules 26 to 31, in relation to a particular witness, should whenever possible be completed before that witness commences his or her testimony.

Witnesses

33 Each participant shall provide to Commission Counsel at the earliest opportunity the name and address of any person who the participant believes should be called as a witness during the evidentiary hearings, with a statement of the subject matter of their proposed testimony, their experience and background, and the estimated length of their testimony.

34 The following rules apply to witnesses:

(a) Commission Counsel shall decide who shall be called as a witness at the evidentiary hearings,

(b) Subject to Rule 35, Commission Counsel shall call and examine witnesses on behalf of the Commission, and may adduce evidence by way of both leading and non-leading questions,

(c) each witness called shall, before testifying, be sworn or affirm,

(d) each witness who testifies may during his or her testimony be represented by counsel or, with the approval of the Commissioner, by an agent,

(e) the Commissioner may, on application by a participant, permit a participant to cross-examine a witness to the extent of that participant’s interest. If the participants are unable to agree on an order of cross-examination, the Commissioner will determine the order,

(f) subject to Rule 35, counsel for a participant is entitled to examine that participant last, regardless of whether or not counsel is also representing another participant,

(g) after Commission Counsel has called all witnesses on behalf of the Commission, a participant may apply to the Commissioner for permission to call a witness and, if permission is granted, subrules (c) to (e) apply to each witness called by a participant.

(h) Commission Counsel has the right to re-examine any witness who has testified.

35 Counsel for a witness may apply to the Commissioner for permission to lead that witness’s examination in chief. If permission is granted, counsel will examine the witness in accordance with the normal rules governing the examination of one’s own witness in court proceedings, unless the Commissioner directs otherwise.

Power to accept information

36 The Commissioner may receive and accept:

(a) information that he considers relevant, necessary and appropriate, whether or not the information would be admissible in any court (see Public Inquiry Act, s. 14(1)), and

(b) a witness’s evidence by way of affidavit or written statement, or by audio or video conference.

37 Without limiting Rule 10, the Commissioner may exclude anything unduly repetitious (see Public Inquiry Act, s. 14(2)).

38 Nothing in Rule 36 overrides the provisions of any Act expressly limiting the extent to which or purposes for which any oral testimony, records or things may be admitted or used in evidence (see Public Inquiry Act, s. 14(3)).

39 A person cannot be compelled to disclose in an evidentiary hearing anything that, in any court, would be privileged under the law of evidence (see Public Inquiry Act, s. 22(2)).

Final submissions

40 Commission Counsel, and each participant authorized to do so, may make final oral and written submissions to the Commissioner on any issue within the Commission of Inquiry’s terms of reference.

41 The Commissioner may set time limits on oral submissions, and page limits on written submissions.

The Commission’s process

42 Subject to the Act and the Commission’s Terms of Reference, the Commission has the power to control its own process (see Public Inquiry Act, s. 9(1)).

Participant’s failure to comply with this directive

43 Without limiting any other powers of enforcement, if a participant fails to comply with this directive, including any time limits specified for taking any actions, the Commissioner, after giving notice to the participant, may do any of the following:

(a) schedule a meeting or hearing,

(b) continue with the inquiry and make a finding or recommendation based on the evidence before him, with or without providing an opportunity for submissions from that participant,

(c) make any order necessary for the purpose of enforcing this directive (see Public Inquiry Act, s. 17).

Commissioner’s discretion

44 The Commissioner retains a residual discretion to amend, add to, vary or depart from any of the Rules in this Directive for the effective conduct of the evidentiary hearings.

GLOSSARY

Acidosis—an increase in the acidity (concentration of hydrogen ions) in the blood, decreasing the pH level below the normal range of 7.35 to 7.45

Adrenergic—pertaining to sympathetic nerve fibres of the autonomic nervous system that liberate adrenaline or noradrenaline

AED—automated external defibrillator, a portable electronic device that automatically diagnoses certain cardiac arrhythmias and is used to treat them through the application of electricity (defibrillation) to re-establish a normal heart rhythm

Agonal breathing—an abnormal breathing pattern typically characterized by shallow, irregular, and laboured breaths, and may be accompanied by gasping and strange vocalizations

Aneurysm—a localized, blood-filled sac caused by disease or weakness in the wall of a blood vessel, typically found in arteries of the brain or heart

Arrhythmia—a variation from the normal rhythm of the heart

Asystole—a state of no cardiac electrical activity, hence no heartbeat

Ataxia—a neurological condition associated with the gross lack of coordination of muscle movements resulting from a dysfunction of parts of the nervous system that control movement

Autonomic hyperactivity—overactivity of the autonomic nervous system that may be caused on by a number of factors, including withdrawal from alcohol or other stimulants. See also “autonomic instability”

Autonomic instability—instability of the autonomic nervous system that may be caused by a number of factors. For example, patients suffering from delirium, a medical, physiological response to external insults, may exhibit autonomic instability with symptoms that may include rapid breathing, changes in perception, sweating, increased heart rate, and unstable blood pressure.

Bipolar—a spectrum of mood disorders that can shift between depression and abnormally elevated mood or mania

Bradyarrhythmia—a heart rhythm in which the heart rate falls below 60 beats per minute

Bradycardia—a heart rate below 60 beats per minute

CAPRA model—an RCMP model designed to increase one’s understanding of the RCMP Community Policing Problem Solving Model, CAPRA (C = Clients, A = Acquire/Analyse Information, P = Partnerships, R = Response, A = Assessment of Action Taken)

Cardiac dysrhythmia—an abnormality in the rate, regularity, or activation sequence of the heartbeat

Cardiopulmonary resuscitation (CPR)—a technique to artificially restore oxygenation and cardiac output through external manipulation

Catecholamines—a class of hormones, including adrenaline, which are released from the adrenal glands, often associated with the “fight or flight” response

Cerebellar vermis—the narrow structure between the hemispheres of the cerebellum, a region of the brain that plays an important role in the integration of sensory perception, coordination, and motor control

CEW—conducted energy weapon. See “conducted energy weapon”

Commotio cordis—a sudden disturbance to the heart rhythm resulting from a sharp and strong nonpenetrating blow to the chest area, occurring often in sports events

Conducted energy weapon—an electrical device (weapon) that discharges a high voltage, low amperage current that causes extreme pain and/or neuromuscular incapacitation

Congestive heart failure—a condition in which the heart cannot pump enough blood to supply the body’s tissues with sufficient oxygen

Contralateral positioning—positioning on corresponding parts of opposite sides.

Coronary ischemia—a condition characterized by reduced or insufficient blood supply to the heart muscle

Cyanosis—a bluish discoloration of the skin usually caused by a shortage of oxygen in the blood

Defibrillation—a treatment for cardiac arrhythmias involving the delivery of an electrical shock to the heart to stabilize the heart rhythm

Defibrillator—See “AED”

Delirium tremens—an acute episode of delirium, commonly known as the DTs, usually related to the withdrawal from alcohol or drugs and often involving episodes of shaking, agitation, and other signs of autonomic instability

Dopaminergic—pertaining to the neurotransmitter dopamine

E-Comm—an Emergency Communications service for southwest British Columbia

Electrocardiogram (ECG or EKG)—a graphic illustration of the electrical activity of the heart

Electrolyte—a substance (typically a solution) containing free ions that make it electrically conductive

Electrophysiology—the study of the electrical properties and electrical activity of the body

Endotracheal intubation—a medical procedure in which a tube is placed into the trachea (windpipe) to protect an airway; often used to provide a means of mechanical ventilation

Excited delirium—a controversial term used to describe a person who is highly agitated and may be under the influence of stimulants or drugs

Glycolysis—a metabolic process for the breakdown of glucose and production of energy

Hemodynamically stable—a condition where blood flow or circulation is normal

Homeostasis—the innate ability and need of the body to maintain a stable, constant physiological condition

Hyperadrenergic—pertaining to overactivity of the adrenergic system

Hyperkalemia—a condition characterized by high levels of potassium in the blood

Hyperreflexia—a condition where reflexes are over-responsive or overactive

Hyperthermia—a condition where the body absorbs or produces excessive heat, often associated with failed thermoregulation

Hypertrophic cardiomyopathy—a condition characterized by the abnormal thickening of the heart muscles (myocardium)

Hypocalcemia—a condition characterized by low levels of available calcium in the blood

Hypoxia—a condition characterized by shortage of oxygen in the body, or an area of the body

IHIT—Integrated Homicide Investigation Team

IM/IM—Incident Management/Intervention Model

Implanted cardiac defibrillator—a small implantable electronic device that detects certain cardiac arrhythmias and treats them by delivering a shock of electricity to the heart

Intercostal muscles—a group of muscles that run between and are connected to the ribs

Interstitial—pertaining to the interstices (the area between tissues and organs)

Ipsilateral positioning—positioning on the same side

Joule—a unit of electrical energy equivalent to the work required to produce one watt of power for one second

Lethal cover, lethal force overwatch—the practice of at least one police officer having her/his firearm ready during an incident while another officer is using less lethal methods

Muscular tetany—the involuntary contraction of muscles

Myocardial infarction—commonly known as a heart attack, occurs when the blood and oxygen supply to the heart or a part of the heart is interrupted

Myocardium—a thick layer of muscles forming the heart wall

National Use of Force Framework—a graphic illustration of when different levels of force are appropriate

Neuromuscular incapacitation—the loss of muscular control caused by stimulation of the sensory and motor nerves

Non-arrhythmogenic mechanism—a mechanism that does not promote or produce arrhythmia

P-wave—in electrocardiography, the wave representing contraction of the upper chambers of the heart (atria) on an ECG

Pericardiocentesis—a medical procedure to remove fluid from the sac surrounding the heart

Petechia—a small red or purple spot on the surface of the body caused by minor hemorrhage or break of blood vessels

Pepper spray—a chemical spray irritating and painful to the eyes. Also known as oleoresin capsicum or OC spray

Photogrammetry—a measurement technique that uses photographs to determine the properties of objects, such as their distance or size, etc.

Pixel—the smallest unit of a picture, referred to in the measurement of the resolution of a digital image

Post hoc, ergo propter hoc—a Latin term translated approximately as “after this, therefore because of this,” used to illustrate the fallacy of assuming a causal link between two events based on their chronological correlation

Probe mode—refers to the mode of conducted energy weapon use whereby electricity is applied through two “hook–lock” probes discharged from the weapon

Psychomotor agitation—unintentional or purposeless motions, such as pacing or tapping, which may be caused by mental tension or anxiety

Pulsus alternans—a condition where the pulse fluctuates between strong and weak beats

Push-stun mode—refers to the mode of conducted energy weapon use whereby electricity is applied through two terminals at the end of the weapon, held firmly against the subject

QRS wave—an ECG representation of the contraction of the ventricles

Radial pulse—a pulse reading taken of the radial artery, typically at the wrist

Renal—pertaining to the kidney

Rhabdomyolysis—the breakdown of muscle, which releases cell components into the blood that are damaging to the kidneys and may eventually cause renal failure

Schizophrenia—a mental disorder whereby the individual has a perceptual difficulty that may be expressed through hallucinations, paranoia, or delusions

Sinus rhythm—an ECG representation of a normal heart rhythm

Spark test—a test of a conducted energy weapon that involves firing the device without a cartridge in place, to ensure that it produces an electrical current

Sympathetic-adrenal-medulla—a portion of the adrenal gland that produces adrenaline in response to stressors, as part of the “fight or flight” response

Sympathetic nervous system—a part of the autonomic nervous system that regulates many of the body’s processes, including the “fight or flight” response

Systole—the phase of the cardiac cycle in which the heart's ventricles are actively contracting and pumping blood, at which time the pressure against the arteries is at its highest

T-wave—a wave on an ECG representing the recovery period of the ventricles

Tachycardia—a heartbeat that exceeds 100 beats per minute

TASER®—the proprietary name commonly used to refer to a conducted energy weapon

Triangulate—a means to locate a point by measuring angles to it from two or more other known points

Troponins—regulatory proteins involved in the contraction of cardiac and skeletal muscles. They are released into the bloodstream when cardiac cells die. An elevated level indicates muscle damage.

Transdiaphragmatic positioning—positioning across the diaphragm

Ventricular capture—the capture of an electrical impulse by the ventricles, which may cause the ventricles to contract

Ventricular defibrillation—a treatment used to normalize the heartbeat by introducing an electrical shock to the ventricles of the heart

Ventricular fibrillation—a condition in which there is uncoordinated and abnormal contraction of the muscles of the ventricles of the heart

Ventricular tachycardia—a rapid heartbeat emanating from one or both of the ventricles of the heart

Vitreous electrolytes—naturally occurring chemicals associated with the vitreous of the eye

Volitional resistance—resistance that is voluntary

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