Braidwood Inquiry

Coordinates: 49°16′57″N 123°07′05″W / 49.282484°N 123.118145°W / 49.282484; -123.118145

The Braidwood Inquiry was a public inquiry conducted in Vancouver, British Columbia, Canada, examining the safety of Tasers and the death of Robert Dziekanski.^[1][2] The two-stage inquiry was conducted by retired Court of Appeal of British Columbia and Court of Appeal of the Yukon Territory Justice The Honourable Thomas R. Braidwood, Q.C.

First stage (Taser safety)

The first stage of the inquiry began on May 5, 2008. The inquiry heard testimony from many experts, including J. Patrick Reilly, an electrical engineer at Johns Hopkins University, who concluded that a Taser could kill,^[3] and the CEO of Taser International Tom Smith. In his testimony, Smith maintained the safety of his product but mentioned that his product was not "risk-free".^[4] Smith also denied that his company rushed to market their product with inconsistent safety and medical research.^[5]

The inquiry also heard from Ujjal Dosanjh, a Canadian Member of Parliament and former Attorney-General of British Columbia with opposing views to Smith; Robert Dziekanski's mother Zofia Cisowski, the Royal Canadian Mounted Police (RCMP) and the Metro Vancouver Transit Police. Both agencies have announced changes to their Taser policies.^[6][7] The first stage of the inquiry finished on May 23, 2008.^[8] On June 10, Attorney General Wally Oppal granted a five-month extension to complete its report.^[9] On 2008-11-04 Braidwood announced that he had requested a further extension “partly because of the complexity and volume of information he has received regarding the use of conducted energy weapons.”^[10] The government granted an extension to June 30, 2009.^[11]

On June 22, 2009, Commissioner Braidwood submitted the report on the first stage of the inquiry to British Columbia Attorney General Michael de Jong. It could be several weeks before the report is released to the public, while the government reviews whether any part of it should be withheld.^[12]

On July 23, 2009, the Phase One report was tabled in the B.C. legislature. Among the conclusions were that Tasers have the capability to injure or kill by causing heart irregularities, especially where the individual is medically or emotionally compromised. Braidwood was quoted as saying, “Deploying a conducted energy weapon against an emotionally disturbed person is, in most cases, the worst possible response.” However, the report concluded that on balance Tasers are a net benefit to society, in many cases allowing police officers to resolve situations just by displaying the weapon. The report made 19 recommendations, and the goverrnment of British Columbia said it would comply with all of them. The provincial solicitor-general said that he expects all police forces operating in B.C., including the RCMP, to comply with the recommendations, but the RCMP said that it would not comply immediately, needing time to review the report.^[13][14]

Taser International Response

On August 14, Taser International filed a petition against the Braidwood Inquiry and is challenging the commission's recommendations.^[15] The company intends to commence an application for judicial review of the Braidwood Inquiry Stage One report, arguing that the procedure breached basic principles of fairness and natural justice, and that the Inquiry's findings were unsupported by medical science. The company reportedly will ask the court to quash large portions of the Inquiry's 19 recommendations.^[16][17]

Second stage (death of Robert Dziekanski)

The second stage began on January 19, 2009.^[18] The Inquiry has heard testimony from several witnesses including airline staff, passengers flying with Dziekanski, emergency response personnel and many others.^[19] Constable Gerry Rundel and Constable Bill Bentley testified at the inquiry during the week of February 23, 2009, and Constable Kwesi Millington testified the following week. The fourth RCMP officer, Corporal Benjamin Robinson, is scheduled to testify beginning March 23, 2009.^[20][21][22]

The inquiry was postponed twice because the RCMP had declined to participate until Crown Counsel made a decision whether to lay criminal charges against the officers involved. On November 4, 2008, the Commissioner announced that he would proceed with the inquiry in January 2009 regardless of whether Crown Counsel had made its decision, and subpoenas were being prepared that would compel the officers to testify.^[10] On December 14, 2008 the Crown announced it had decided against laying criminal charges for the four officers involved in the death of Mr. Dziekanski.^[23]

June 2009; new evidence

On June 19, 2009, just before oral closing submissions were about to begin, proceedings were postponed to September 2009.^[24] The reason for this was an email between high-ranking officers of the RCMP from November 5, 2007, which mentioned in passing that Superintendent Rideout (the head of IHIT) had reported that the four RCMP officers had decided en route to the airport that if the man causing the disturbance was noncompliant, they would use the Taser on him. At the hearing on June 19, 2009 counsel for the RCMP as well as counsel for Superintendent Rideout indicated that the statement in this email was simply an error, and that IHIT had never received any information that the four officers had made this plan in advance. Counsel for the Government of Canada apologized for not having disclosed the email until this late date. Commissioner Braidwood stated he was "appalled" and, without expressing an opinion on the credibility of the email in question, noted that it would require further investigation and the reopening of evidentiary hearings; therefore he adjourned the Inquiry to September.

On June 19, new revelations surfaced over a document that was not disclosed to Commission counsel until that week.^[25] The document is an email, sent by a top RCMP official, that relates information inconsistent with the testimony of the four RCMP officers before the Commission. This has led to the possibility of invalid testimony by the RCMP. The inquiry is postponed until September 22 to allow time to investigate whether the information is correct or whether, as the author of the email itself has said, it was erroneous.^[26] The email's text includes the line "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."^[27]

Notices of misconduct and applications for judicial review

In April 2009, Commissioner Braidwood issued confidential notices of misconduct against each of the four RCMP officers present at the incident. The confidential notices stated that the Commissioner may make findings of misconduct against the officers in respect of their actions at the airport, as well as in respect of statements made to investigators and in respect of their testimony at the Inquiry. Such notices are required under subsection 11(2) of the Public Inquiry Act.^[28] The Commissioner had not decided whether or not he would make such findings, but the notices were issued in order to give the officers fair notice that such findings were a possibility.

Counsel for the officers applied confidentially to the Commissioner for “particulars”, further details of what they were alleged to have done and the standard against which their conduct would be judged. On May 22, 2009, Commissioner Braidwood issued a confidential ruling concluding that further particulars were appropriate with respect to only one item in the notices. Amended notices of misconduct were then issued on May 28, 2009.^[29]

On June 2, 2009, counsel for the officers applied confidentially to the Commissioner that the notices of misconduct be quashed, on the basis that they were ultra vires a provincially-created commission and, in any case, outside the terms of reference of this commission. On June 9, 2009, Commissioner Braidwood issued a confidential ruling dismissing that application.^[29]

British Columbia Supreme Court

The four RCMP officers present at the tasering incident filed petitions in the Supreme Court of British Columbia, seeking judicial review of both those decisions. The petitions sought to prohibit the Commission of Inquiry from making findings of misconduct against the RCMP officers, and in the alternative to order further particulars of the alleged misconduct. The basis for the application is the argument that officers of the RCMP, a federal agency, are outside the jurisdiction of a commission created by the provincial government.^[30][31] The court applications arise out of notices sent to each of the RCMP officers by commission counsel, warning them of the possibility that findings of misconduct could be made against them, relating to their conduct at the incident as well as their notes taken afterward and statements made to investigators, and testimony at hearings of the Inquiry.^[32]

The RCMP itself did not support the legal position taken by the four officers in court. RCMP spokesperson Sgt. Tim Shields said, “The position of the RCMP is that the RCMP will co-operate fully with the inquiry and is also recognizing the jurisdiction of the inquiry as having authority.” Shields acknowledged the lawyers are paid with taxpayers' money but said the force itself has no power to stop them from contradicting RCMP policy.^[33] Neither the RCMP nor the Attorney-General of Canada was represented at the court hearing.

On June 15, 2009 BC Supreme Court judge Arne Silverman ruled that Commissioner Braidwood has the power to make findings of misconduct against the four Mounties.^[34]

Justice Silverman found that the details provided in the notices of misconduct satisfied the requirement of procedural fairness, and thus did not order that further particulars be provided.

On the constitutional issues, Justice Silverman concluded that making findings of misconduct (by a provincially-constituted Commission) would not encroach on the federal Parliament’s exclusive jurisdiction over criminal law, and also would not encroach on the federal government’s exclusive jurisdiction over the discipline of RCMP members.^[29]

Finally, Justice Silverman concluded that the subject matter referred to in the notices of misconduct were within the bounds of the terms of reference of the Commission of Inquiry. Therefore, the petitions of the RCMP officers were dismissed.^[29]

British Columbia Court of Appeal

Constables Kwesi Millington and Bill Bentley have launched appeals, in the British Columbia Court of Appeal, of Justice Silverman's ruling.^[35]

As of June 30, the four RCMP members are appealing a previous court decision that allows misconduct findings in Taser inquiry.^[36]

On December 29, 2009, the Court of Appeal dismissed the appeals, thus confirming that Commissioner Braidwood has the right to make findings of misconduct against the officers should he consider it appropriate to do so.^[37]

Delivery of Second Report

On June 18, 2010 Justice Braidwood delivered his second report on the death of Robert Dziekanski.

The commissioner spoke of how members of the public viewing the Pritchard video were "shocked and repulsed". He viewed the matter as a failure to act in accordance with training. He said the “senior officer acted inappropriately and aggressively” when dealing with Mr. Dziekanski. He held the victim “did not brandish the stapler by either placing it above his head or motioning with it in an aggressive manner toward any of the officers”. Further, Dziekanski “did not step towards to the officers”. The use of the conducted energy weapon “was not justified”. The actions of the constable and the corporal were inappropriate and unjustified. Braidwood did “not believe that either of these officers honestly perceived that Mr. Dziekanski was intending to attack them or the other officers”. The two other officers offered “patently unbelievable” explanations of their actions. All four made “deliberate misrepresentations”. The commissioner “did not believe the claims of no discussion” of the event between themselves. Significantly, there was no finding of “collusion”. He characterized the action by the officers as a “story of shameful conduct by a few” and contrasted that with good work by police.

As to the cause of death, he ruled the cause was heart failure because of increased adrenaline — more precisely a “hyperadrenergic state that led to ... fatal cardiac arrhythmia”^[38] brought on by cumulative stress of travel and arrival made worse by the five deployments of the conducted energy weapon and struggle. He said the latter two are what killed him as they “contributed substantially to that tragic result”.^[38] Emphatically, he said: “Mr. Dziekanski in no way brought this upon himself.”

On other aspects he spoke of the CBSA inaction to improve their procedures and policies in light of the incident. He offered no recommendation directly to CBSA and asked the provincial Attorney General pass along the recommendation if he agreed with them. He praised the airport authority for their changes and recommended further changes. Of the RCMP’s media response to the incident, he felt the force offered factually inaccurate but not intentionally misleading statements to the public. He endorsed the report of the Davies Commission on the death of Frank Paul and added to the recommendations therein to establish a civilian oversight body of all police “provincewide”.

Reaction to Second Report

Then-Attorney General of British Columbia Michael de Jong credited Braidwood for “a tremendous job of unravelling and probing all the circumstances surrounding the tragic death … [the province] B.C. agrees with the intent, principle and purpose of each of the report’s recommendations.” Hence, the province will establish, within a year, an independent civilian agency, the Independent Investigations Office (IIO), to investigate police-related deaths and serious injuries. De Jong named lawyer Richard Peck as special prosecutor to take a second look at criminal charges against four RCMP officers. De Jong opined there was “misconduct”.^[39]

Commissioner of the RCMP William J.S. Elliott reacted with hours of the report's release. He said the force accepted the report and its recommendations.^[40] He stated the RCMP failed at many levels over the incident. Speaking for the force he said "We acknowledge that the actions of our members who dealt with Mr. Dziekanski also fell short." And "our officers did not take enough time to try and de-escalate the situation and did not provide an appropriate level of care to Mr. Dziekanski."^[40] The RCMP will be subject to B.C.'s civilian police oversight body once established.^[40] Other changes to procedures have already been announced.

See also

• Robert Dziekański Taser incident
• Taser safety issues

References

External links

• Braidwood Inquiry Website
• "Public Inquiry begins in Vancouver" (Video). Video. 5 May 2008. 
• Phase 1 Report