POLICE ACT REVIEW AND INVESTIGATION
INTO THE DEATH OF ANTHANY DAWSON
This document is the Police Act Review and Investigation into the incident which culminated in the death of Anthany Dawson. This comes on the heels of several previous investigations and a Coroner’s Inquest. The first investigation began the day Mr. Dawson was apprehended and was conducted by the Major Crime Section of the Victoria Police Department. This investigation was subsequently referred to the Island District RCMP Major Crime Section, at the request of Victoria Police Chief Paul Battershill. Subsequent to the completion of that investigation Regional Coroner Dianne Olson conducted an Inquest under the Authority of the Coroner’s Act. The RCMP Investigation was also the subject of a review by Regional Crown Counsel.
With respect to this Police Act Review a Form One Record of Complaint from Mrs. Nancy Dawson was received by the Victoria Police Department on May l4, 2000. That complaint related solely to Mrs. Dawson’s inability to access the contents of the investigation conducted by the RCMP Major Crime Section. This issue was subsequently resolved by the release of the investigation report. However, when contacted by a member of the Victoria Police Department Public Complaints Section on June 20, 2000, Mrs. Dawson indicated that she would be sending another letter of complaint relating to the conduct of the officers involved in the apprehension of her son.
With the conclusion of the RCMP investigation on February 22, 2000, their report was reviewed by Deputy Chief John Lane of the Victoria Police Department who then recommended that the information be forwarded to Crown Counsel for independent review. On May 3, 2000, Mr. R.W.Gillen, Q.C., Regional Crown Counsel, concluded that no charges should be laid against any of the involved officers.
On June 29th, , 2000 Chief Battershill sent a letter to counsel acting for the Dawson family, Mr. Adrian Brooks, acknowledging that another complaint under the Police Act would be forthcoming and confirming that he was suspending all Police Act proceedings until the conclusion of the Coroner’s Inquest.
At the completion of the Inquest, in a memorandum dated December l5th, 2000, Chief Battershill assigned the writer to conduct a Police Act Review and Investigation. In reviewing the contents of the file it was noted that no new complaint had been received by the Victoria Police Department. I directed correspondence to Mr. Brooks, dated January 8th, 2001, confirming that I had been directed to re-commence the Police Act Investigation and seeking clarification as to the issues the Dawson family wished to see addressed. This was followed up by a telephone call to Mr. Brooks on January 29th, 2000.
A letter dated February 22nd, 2001 was subsequently received from the offices of Brooks & Marshall, including a new Form One Record of Complaint completed by Mrs. Nancy Dawson. Under the heading "Description of Incident" Mrs. Dawson wrote the following:
My son Anthany was in medical distress on Oak Bay Ave. Cst. Larry Hemstad had first police contact with Anthany. My son then ran down Oak Bay Ave. to near Bank St. At that point he was approached by Cst. Sheldan who punched him repeatedly. A total of 8 civilian witnesses saw some or all of the unprovoked punches of Cst. Sheldan. Cst. Trudeau, Cst. Saunderson, and Cst. Knoop, as well as Cst. Hemstad, then joined in using force against my son.
Ultimately the police officers put my son face down on the ambulance stretcher in a position that he could not breathe. He went into cardiac arrest which caused his death.
Much of the material relevant to this investigation was held subject to undertakings of non-disclosure between counsel for the parties involved. Their cooperation in making it available for my review is gratefully acknowledged. I would also like to acknowledge Mr. Bill Summersgill, the liaison officer from the Office of the Police Complaint Commissioner assigned to this investigation.
In examining the information compiled throughout the various investigative processes it became apparent to me that there would no value in re-interviewing the witnesses to the incident. Many had been interviewed on at least two separate occasions by experienced investigators, and those with the most direct involvement had been subject to skillful and exhaustive cross-examination during the Inquest. It should be noted that the transcripts of the Inquest alone comprise a total of l266 pages of material. With the passage of time since August 11, 1999, I concluded there would be no possibility of obtaining any further relevant information from those involved. Therefore, this review and my conclusions are based entirely on evidence gathered by the Victoria Police Department, the RCMP, the findings of Dr. L. Gray, the Consultant Forensic Pathologist, the report of Dr. P. MacLeod, and the proceedings of the Inquest.
With respect to my policy recommendations regarding the phenomenon of excited delirium I wish to acknowledge the assistance of Dr. Steven Karch, Assistant Medical Examiner for the City and County of San Francisco.
This document is divided into several sections. This first deals with the evidence of police and civilian witnesses regarding the issues raised by Mrs. Dawson, specifically the actions of Cst. Sheldan, Cst. Saunderson, Cpl. Trudeau, Cst. Knoop, and Cst. Hemstad, and contains my conclusions and recommendations.
The second section deals with the implications of dealing with individuals suffering from excited delirium, along with my recommendations regarding training and policy development.
The third section is an examination of the state of the law regarding statements taken from police in the aftermath of incidents which may be the subject of criminal and/or Police Act investigations.
Executive Summary
This document comprises the Police Act investigation into the death of Anthany Dawson. As such, its objective is to identify any disciplinary defaults on the part of any involved officers as well as to address any Departmental Service and Policy issues which may have arisen.
With respect to the issue of excessive force witnesses at the scene have provided significantly different accounts of what took place. It is clear that Cst. Sheldan made two rapid downward movements with his hand directed at Mr. Dawson’s shoulder, head, or neck, after his verbal commands had met with no response. Whether these were punches, closed hand impact techniques, or the preliminary moves to initiate an arm bar takedown there is no medical evidence to suggest that these or any other actions caused any significant physical injury and it is clear they in no way contributed to Mr. Dawson’ s death. Although one witness described Mr. Dawson being placed in a "chokehold", which the same witness equated to a "headlock" the evidence of the pathologist was unambiguous in confirming there was absolutely no evidence of that on her examination.
Likewise, with respect to Sheriff [M.], who although off-duty moved to assist Cst. Sheldan, the medical evidence clearly discounts any allegations that he may have placed excessive compressive force on Mr. Dawson’s chest.
Expert evidence provided at the Inquest regarding the use of force also confirmed that Cst. Sheldan’s actions were within the Use of Force model employed by the Victoria Police Department. The highest level of force usage that could reasonably be attributed to Cst. Sheldan, based on the most negative interpretation of what was seen by witnesses, was still within acceptable limits.
When other officers arrived to assist Cst. Sheldan there were two attempts made to place Mr. Dawson onto the ambulance gnrney. When this was accomplished Mr. Dawson was on his stomach with his head turned to the side. The issue was whether this positioning may have negatively affected Mr. Dawson’ s ability to breathe. The subject of intensive scrutiny during the Inquest, the conclusion of the pathologist was that positional asphyxia played no role in Mr. Dawson’s death.
Racism, although not addressed in Mrs. Dawson’s complaint, was clearly a subject of some commentary and speculation. An analysis of the involved officers’ actions and their operating assumptions reveals no evidence that their behaviours were in any way racially motivated or that race was a factor in the standard of care provided to Mr. Dawson.
In light of all the evidence presented no disciplinary action is recommended against any of the members involved.
In regard to Service and Policy issues there are a number of recommendations relating to the issue of excited delirium, the agitated state in which the officers first encountered Mr. Dawson. These recommendations include enhanced training for members who encounter individuals suffering from excited delirium, as well as investigative protocols to assist in the identification of this syndrome as a causative factor.
The second Service and Policy issue addressed in this document relates to officer statements and examines the state of the law around the obligation of officers to provide statements in circumstances where they may become the subject of criminal or Police Act investigation. This is an area of some ambiguity that may require legislative intervention to clarify. No recommendations are made with respect to this issue.
INCIDENT SUMMARY
At approximately l6l5 hours on August 11, l999 the Victoria Police Department Communication Centre began receiving calls of a male who was running in and out of traffic in the area of the Oak Bay Junction. Csts. Hemstad, Plater, and Sheldan were initially dispatched at approximately l620 hours, followed by Cpl. Trudeau and Csts. Knoop and Saunderson who were dispatched thirteen to fourteen minutes after the initial broadcast.
It was Cst. Hemstad who initially located the male at the intersection of Oak Bay Ave. and Rockland. The ambulance, which had been dispatched at the same time as the police, was already on the scene. Cst. Hemstad observed a male lying on his back in the middle of the road, wearing only a pair of jeans. The male was screaming and in Hemstad’s words "slapping his fists against the roadway". Cst. Hemstad advised Cst. Sheldan over the radio that he would require a cover unit. As the ambulance crew were removing a stretcher from their vehicle the male removed his jeans, despite verbal instructions from Hemstad not to do that, and then abruptly stood up and bolted away eastbound on Oak Bay Ave.
The male ran to the intersection of Oak Bay Ave. and Bank St., where again he laid down on the road. Cst. Sheldan arrived at this location on his motorcycle and then approached the male. Cst. Sheldan and the male became involved in a physical altercation as Cst. Sheldan attempted to apprehend him. Cst. Sheldan describes being struck in the face on his initial approach and a number of witnesses then reported observing Cst. Sheldan punching the male in the head or upper shoulder/neck area and then attempting to physically restrain him.
In Cst. Sheldan’s "Will Say" he notes that he was initially unable to establish control over the male. He also states that he was unable to use his radio to request assistance as he was fully engaged in the struggle. It is at this point that Sheriff [M.], who was off-duty, intervened to assist Cst. Sheldan. As Sheriff [M.] and Cst. Sheldan worked to apply handcuffs to the male, Cst. Hemstad arrived to assist, followed by Cpl. Trudeau, Cst. Knoop, and Cst. Saunderson.
With the male now physically restrained he was placed face down onto a stretcher and then strapped into place. The male was lifted into the ambulance, still struggling against the straps holding him in place. Once in the ambulance the male was observed to be in respiratory arrest and the ambulance crew began to perform CPR. Cst. Knoop was subsequently enlisted to assist in compressions while the ambulance was enroute to Royal Jubilee Hospital.
Once in hospital the male, now identified as Anthany Dawson, lapsed into a coma. He was pronounced dead on August 13, l999.
Excessive Force - Abuse of Authority
With respect to the issue of excessive force there are varying accounts of what actually took place when Cst. Sheldan moved to take physical custody of Mr. Dawson. Numerous witnesses to the event provided statements to investigators regarding what they had observed. Given the fast moving and dynamic nature of the event it is unsurprising that there are substantial differences in the description of events.
For ease of reference I will review the evidence of the relevant witnesses in alphabetical order, the same format utilized by the RCMP in their investigation. Throughout this there will be references to counsel who appeared on behalf of various parties at the Inquest, they include Mr. John Orr, Counsel to the Coroner, Mr. Adrian Brooks on behalf of the Dawson family, Ms. Nancy Brown of the Ministry of the Attorney General, Mr. Guy McDannold, counsel to the City of Victoria, Mr. Clayton Pecknold for the Victoria Police Department, and Mr. Christopher Considine, representing Cst. Sheldan and Sheriff [M.].
[J.A.]
At the time of the incident [J.A.] and his wife were living in the upstairs suite at [address deleted]. [J.A.] was called into the laundry room of the suite, which faces Oak Bay Ave., by his wife. [A.] made the following observations:
"he (Sheldan) was wrestling with the naked guy in the middle of the street, Oak Bay Avenue, and, and a few seconds after I got there, he punched, the, the policeman punched the naked guy a couple of times in the side of the head or sort of in the neck or face area, and he put him in a headlock and the naked guy was struggling with the cop. It looked like he was trying to get away from the cop and I remember talking, or [K.] and I were talking about it at the time and we commented that the naked guy must be really strong because it looked like the cop was having a lot of trouble, you know, restraining him, and the, the naked guy, it looked like the cop was bigger than the naked guy but he, he was obviously having a difficult time restraining him. He put him in the headlock and it was a pretty, looked like a pretty tight hold because the naked guy sort of stopped struggling a little bit and was, I’m trying to remember if he was sort of semi-prostrate on the street at that point, and he kept him in the headlock for a minute or two."
[A.] then observes the arrival of off-duty sheriff [G.M.]. At this point he describes Cst. Sheldan as holding Mr. Dawson in a "choke-hold".
In subsequent questioning by RCMP member Scott Braes [A.] stated:
SB You indicated that the police officer punched the naked man in the neck/face area on how many occasions?
JA I think two.
SB Okay. And you indicated that he put him in a headlock.
JA Yes.
SB You also mentioned that he, he put him in a choke hold. Are these one and the same thing or are these different…
JA Same thing. I meant the same thing. With his arm around the naked guy’s neck, like tightly, pulling him towards him.
During the Inquest [A.] was examined by Mr. Brooks:
Q Now to come back to the headlock. You then see the policeman punch two times; is that right?
A That’s correct.
Q And I take it that it is, looks like a strong hard punch?
A Fairly hard. They looked more like fairly hard jabs, like the wind-up wasn’t very long.
Q So he didn’t have a long wind-up but did the fist move very quickly?
A Yes.
Q Both times?
A Yes.
[K.A.]
It was [K.A.] who first called her husband’s attention to the events taking place on Oak Bay Ave. She first notices Mr. Dawson lying naked in the the middle of Oak Bay Ave. and then witnesses the arrival of Cst. Sheldan. Scott Braes is again the interviewer:
KA …and he walked over to him and within a second he reached down and he punched him twice using his right arm and he punched the naked guy kind of in the, the left side of the body, the, the upper shoulder, neck, left side of the face area.
SB Okay, so we’re talking, I’m sorry, the shoulder, neck, face area?
KA Yeah. I couldn’t see exactly where it hit but I could see it was hitting right, like in that little area of the face and shoulder there. It happened within like a second. There wasn’t even any talking that I saw go on. I couldn’t hear anything from the suite. It’s just a bit too far away. So after he punched him, as, as that, the cop went to punch him, the guy did put up his hands in a more defensive manner than an aggressive manner, as if to, to hold the cop away from hitting him. Then the cop and the naked guy kind of started , you know, grappling, wrestling with each other and the cop kind of like, you know, as he kind of came back up, the naked guy kind of came up with him and then the cop kind of flipped him so that his head was now to the west, but slightly south, so that it was almost like a body slam kind of thing and the guy was thrown on, the naked guy was thrown onto his, the left side of his body.
The first interview with Ms. [A.] was interrupted. In a subsequent interview she stated the following:
SB Okay. Now if I understand correctly from the previous statement, you indicated that the, the, the blows that were delivered by the police officer were in the, the neck, shoulder, face area on the right hand side of the naked man or is it the left side?
KA I have to think about which way. Naked guy’s lying this way. It would be to his left side.
SB The left side of the naked man?
KA Left side.
SB Okay.
KA Yeah.
SB When he was punched or was it a punch or was it a slap or what was it?
KA No, it was a punch.
Later in this same interview Ms. [A.] stated:
Then the policeman, as he threw him down, then he, he continued, he came, like once the guy was down, then he came down to, excuse me, the naked man’s right side and then, that’s when he punched him again, about two or three more times, and he punched him again with his right arm and hit the naked man (indecipherable) right side this time, but I couldn’t see where exactly he hit him at, just because of the angles that they were.
During the Inquest Ms. [A.] stated the following in her examination by Mr. Orr:
Q And what happened when he approached Anthany?
A I didn’t hear him say anything because I couldn’t hear Anthany saying anything. And he approached him and went to crouch down on Anthany’s left-hand side and I thought he was crouching to talk to him and he just all of a sudden pulled his fist back and punched him twice.
Further on in the examination there was the following exchange:
Q Now just so I’m clear. When you say that you saw him punch Anthany twice, did you see some part of the police officer make contact with some part of Mr. Dawson?
A Yes, I believe so.
Q What part of the police officer made contact with Mr. Dawson?
A His fist made contact with Anthany’s, this region.
Q You are pointing—
A To his left.
Q The left-hand side of the neck or lower face area?
A That’s correct.
Q After the police officer had put Mr. Dawson back on the ground, what happened?
A The police officer kind of came down with Anthany, sort of half crouched, half kneeling, and used his---I believe it was his right arm. This is about the point where my husband came in as well, used his right arm to I couldn’t quite tell myself if it was around his neck or in front of his neck and then proceeded to punch him two more times on the other side.
Q Again, just to be clear, you say you saw him punch two more times. Can you say what parts of the police officer if any made contact with what parts of Mr. Dawson?
A His fist with Anthany’s, his approximate neck to lower jaw region.
[C.A.]
The next witness was also at [address deleted], this time in the dental laboratory located on the ground floor of that address. [C.A.]’s husband called her attention to what was occurring outside.
In her initial statement to Cst. Toogood of the RCMP [C.A.] stated:
"and I saw him give the fellow a , quite a, what seemed to me, quite a hard blow to his head, where exactly I don’t know.
In response to a follow-up question from Cst. Toogood about what she saw the officer do she replied:
Well, I saw him give him a, you know, like he gave him a real good punch, just as I wa, happened to walk out and observe that. He gave him a punch to the head, but…
During her examination at the Inquest by Mr. Orr she stated the following:
Q And you said the police officer was punching the man?
A Uh-huh. I saw him doing-I saw him give the man on the ground a blow.
Q A blow?
A I cannot recall if it was more than one.
Q Just to be clear, because you said you saw him punching him.
A Well, I call a punch like a blow.
[R.A.]
[C.A.]’s husband, Robert, first observed Cst. Sheldan arriving at the scene. Curious as to what was happening, he went out his front door and observed Mr. Dawson lying on the road naked. He returned inside to tell other staff about what was happening. In his statement to Det.’s Bell and Semkiw he stated:
"By the time I had gone in, told them about it and came out of my office again, the officer had the man already in a headlock and that’s the way I perceive it at that time, yeah."
When asked how many times he saw the officer strike or punch Mr. Dawson he replied:
"I saw the officer hit him once um quite hard which I then say to myself felt like he was trying to get control and another one was just a little short jab that missed because the officer was trying, I felt, with all his might to hold onto this individual. He was doing everything he could to hold on and most of the time, he was holding his left hand with his right hand-the times that I saw-just to hold the individual under control."
[A.] was asked where the punch landed.
Um I if I was to say what side of the face, to be honest, I couldn’t but I know it hit him in the face because the officer was-it was a quick punch and it’s almost like you could you could hear the revert from it, you know. Um it it seemed to hit solid and if I was to say the right side or the left, I honestly couldn’t give you a….
Mr. [A.]’s ill-health prevented him from giving evidence at the Inquest.
[C.D.]
Also present in the dental lab was [C.D.], a dental technician. He also went outside after being informed by [R.A.] about the presence of a naked male on the street. [D.] was interviewed by Det. Semkiw.
D Man. Ah, I think he was behind him. I’d say like and he had him in a headlock and it looked like he flipped him over and then he went straight down, twice.
S You’re indicating ah a punching motion with your right hand. The policeman punched him?
D Um hum.
S Twice?
D Um hum.
S Where did he punch him?
D Well, like like I told you before, I I don’t know exactly where he hit him but I know he hit him like from either from right here up somewhere.
S You’re indicating from your chest up to the top of his head?
D Yeah. Somewhere in the upper part
D But
S upper torso?
D Yeah, but I don’t know I don’t know
S …..
D exactly where he hit him.
S He did hit him twice?
D Yeah. Like goin’ from straight down like that
S What happened after he hit him?
D Well, he just kept on struggling.
Questioned by Mr. Orr during the Inquest Mr. [D.] related the following:
Q Did you see the police officer approach Mr. Dawson?
A Yes, I did.
Q What happened?
A Basically, as soon as he got there he was telling him to get on the ground.
Q Could you hear him saying that?
A Yes, he was yelling at him.
Q He was yelling at him and telling him to get on the ground?
A Yes.
Q And then what?
A Well, then Mr. Dawson was like he was on the ground. He was on the ground when I first him. He was lying on his back with his arms out. And then when the motorcycle officer went towards him, he started getting up. And then there was a little struggle, the police officer.
Q There was a struggle with the police officer?
A Yes.
Q Can you describe what each did?
A Mr. Dawson, he was just basically trying to get up and I think the policeman was just trying to put him down on the ground.
Q What as best as you can recall, what did you see the police officer do to get him back on the ground?
A Well, for a couple seconds he was struggling with him. Then he grabbed him in a headlock. He kind of flipped him and then punched him twice straight down.
Q And you are showing an action with your right hand in a downward motion?
A Yes.
Q So was the police officer sort of above Mr. Dawson at that point when he is striking downward?
A They weren’t standing up. They were sort of close to the ground. They were struggling. Like I say, he grabbed him in a headlock and kind of flipped him and after he flipped him he hit him twice.
Q Now did you see the police officer’s hand? You are indicating downwards and you had your hand in a closed position.
A Yes, he hit him twice.
Q Did you see it in a closed position, the police officer’s hand?
A I think so, yes.
Q And did you actually see contact between the police officer’s closed hand and Mr. Dawson?
A Well, like I said in my statement, I knew he went, he hit him twice but I don’t know where he hit him.
Q So you are not sure exactly where he hit him?
A All I know it was from like the waist up. It was the upper part of his body or his head.
[R.H.]
[R.H.] was in his apartment at [address deleted] when something drew his attention to Oak Bay Ave. Interviewed by Det. Semkiw [H.] related the following:
"I looked out the window and there was this fellow lying parallel to traffic, right on the centre line, his head facing west, just lying there and just as I looked, this ah motorcycle policeman was getting off his bike and going over to him and um he knelt down beside him and spoke to him and that seemed to trigger something in the guy’s mind because he just sorta went-started going wild and flailing around but ah it sort of caught the policeman a little off guard I think but he managed to keep him pinned but I could see that he was struggling to get his his ah handcuffs and and get him get him ah subdued in that was and he was almost losing the battle, I think…"
Det. Semkiw asked if [H.] had observed the policeman kick or strike Mr. Dawson.
H Nothing at all.
S Okay.
H Nothing like that.
S And you didn’t see any striking, just
H No.
S kinda grabbing onto the hands
H Yeah, just trying
S to handcuff
H to hang onto him, yeah.
[C.H.]
Another witness who was driving his vehicle at the time of the incident was [C.H.]. [H.] observed much of the incident by looking in the rear view mirror of his vehicle. [H.] was interviewed by RCMP Officer Sean French.
"….and I looked in my mirror again and I saw the fellow the young fellow’s arm fly up so what happened in between then I don’t know. And then the cop grabbed him twisted him around and said…"When I tell you to…When I tell you to fucking roll over you roll over"…and then I thought it was a little…just the way he was (indecipherable) as he did it he punched him twice in the side of the cheek and then he rolled him over and then I just of I was thinking about stopping on one point cause I thought it was a little excessive but yet you don’t know what happened I didn’t know what had happened up the street so I just kind of kept on watching them in my mirror and basically when I lost sight of him he had his knee on the back of his neck and his arms behind him.
Asked to again describe what he had seen in his rear view mirror [H.] stated:
"Him leaning down and first I saw the native’s hand flick up now I don’t know if it even hit the officer or not all I saw was the arm flip up and at what force or anything like that or what if he had done something earlier I don’t know all I…the first thing I noticed was the arm and then…"when I tell you to fucking roll over you roll over" and then the two hits and then watching the road and watching him the next thing was the knee on the back of his neck and his arms behind him. And he wasn’t fighting at all he laid there and as long as when I got to the red light I was still watching him and he never moved and the officer never did either."
During his testimony at the Inquest Mr. [H.] stated the following during his examination by Mr. Brooks:
Q The first thing you heard said by the police officer is what you told us about, "When I tell you to fucking roll over you roll over"?
A Yes. That’s the first of anything happening really.
Q You hadn’t heard anything come from the police officer before that?
A No.
Q And nothing from Mr. Dawson before that?
A No.
Q I may have things slightly out of sequence here because I wanted to ask you about the movement of the arm. As you were telling us about that, you had your right arm and you had it extended up above your head. Is that the picture in your mind of a hand extended above Mr. Dawson’s head that you recall?
A Yes, it was up in the air and I don’t know how it got there or if it was the officer that was bringing it back; I have no idea.
Q Just rather than how it got there, the position though, it’s off the ground. Mr. Dawson is on his back. Can you tell how far off the ground it is?
A I would say it’s just about straight up in the air from if he were lying flat, it’s up.
Q So it’s straight up and I take it from what you are telling us that puts the hand very close to the actual pavement?
A Away from the pavement.
Q How far away from the pavement?
A Well, basically if you are lying flat it’s half ways.
Q So sort of at right angles from the pavement; is that what we’re talking?
A Yes.
Q So you don’t know essentially how the arm got up there. You just have the picture in your mind of it being up there. Am I getting that right?
A That’s correct. When I was driving I was trying to watch and drive at the same time.
Q Just so I have the sequence from that point on. You hear the police officer say "When I tell you to roll over you fucking well roll over." And then grabbing one of Mr. Dawson’s arms and then punching him in the side of the head?
A Yes.
Q Twice?
A Twice.
Q Before punching him in the head are you telling us that the police officer grabbed Mr. Dawson’s arm that had been up or did you see that?
A Didn’t see that at all.
Q I take it that the words spoken and the punches, they happen one right after the other?
A Yes.
Q Almost at the same time?
A Probably at the same time more than anything.
Q And I think you made a gesture about where the punches landed. I’m not sure if you actually said the words. You pointed to the right side of your face and I think you told us you couldn’t tell if it was right or left side?
A That’s correct.
Q But you did point in the cheek area just below the eye and above the chin?
A Yes, I would say in that area.
[S.M.]
[S.M.] is a veterinary assistant employed by the [name deleted] Clinic at [address deleted]. She exited the Clinic after hearing "crying out noises" coming from the street. She was interviewed by Det. Semkiw.
"Um I stepped out of the office which puts me basically on the sidewalk on Oak Bay Avenue. Ah in clear view in front of me was a um a motorcycle officer who had, ah, it appeared to me, just grabbed a fellow who was running stark naked ah or was stark naked in the middle of Oak Bay Avenue. Um he was ah facing east down Oak Bay Avenue, was trying to-the fellow was trying to escape him. Um he was trying to grab him by the body and keep him down on the ground so it ended up where the fellow was head down, butt up and the officer was trying to contain him. I watched for a moment from the Avenue to see if I could be of any assistance. Ah, a fairly large fellow came from the opposite side of Oak Bay Avenue-I think after observing for a moment or two-and then um proceeded to assist the officer in trying to contain the man. Um at no time during the struggle with the officers did I see him do anything other than try and get away and at no time during the struggle did I see the officer use anything other than the strength he had to try and contain the man. Um the fellow seemed to be ah extraordinarily strong because between the big fellow assisting and the officer, this fellow was actually getting up and almost starting to make progress in struggling to get away.
[S.M.]
[S.M.] was a passenger on a BC Transit bus that was going east on Oak Bay Avenue when she first observed Mr. Dawson lying on the road. After she had gotten off the bus and was walking home she observed Cst. Sheldan’s arrival on scene. She told RCMP Cst. Sean French the following:
"…a policeman on a motorcycle came up and stopped just by the man’s head and he got off just by the man’s head and he got off his bike and he tried to lift up the man by putting his arms underneath his shoulders you know the policeman was at the man’s head and he couldn’t lift him or drag him so so he left him he then came to the side and and raised his leg and sort of straddled the man and he sort of sat on the man’s stomach or his chest at that point and the policeman’s back was to was towards me at that point so I couldn’t see his face but I did see his his body twist and his right fist come up and it was at that point I saw him sort of punch into the man twice…(indecipherable) where his face was and I felt really sick…"
[H.P.]
[H.P.] was crossing Oak Bay Avenue at Bank St. when she noticed Mr. Dawson running naked down the street towards her. She then observed Cst. Sheldan’s arrival:
" …and he got off his motorcycle and yelled or talked loud to the fellow to roll over and he got no response and he again said…"Roll over"…and got no response so he knelt down to one side of him and tried grabbing his arm and pulling him and just the guy was not co-operating and at a point shortly thereafter he struck him once in the head just once and yelled again…"Roll over"…and he wasn’t doing it and he’s struggling at this point the policeman has to try and flip him over and he’s just basically they were like spinning as this guy I don’t know how to describe how this fellow was it was…he wasn’t passive but he wasn’t…he wasn’t striking him either he was just not rolling over so at that point I thought…"Man this guy’s nuts he could get this policeman’s gun and you know like I’m getting out of here"…
Cst. Sean French questioned Ms. [P.] further about the force used:
F You mentioned the police officer struck the fellow on the ground.
P Right that was he struck him to the left forehead…around that area…forehead to temple in that area with closed fist once.
F What was your impression of that?
P Well it I don’t know if it shocked me is too strong a word but I’ve never seen anyone strike anyone so it did get my attention but at the same time it didn’t. It alarmed me more that this guy was not cooperating than it did the policeman striking him.
F Was there a reaction on the part of the person who was hit?
P No. No.
F No words?
P No.
F No physical reaction?
P No. No he wasn’t striking out at the policeman but he wasn’t he wasn’t turning over either he was obviously not allowing him to you know the policeman to turn him over.
Ms. [P.] was questioned about her observations during the Inquest by Mr .Brooks:
Q And the police office yells at him about rolling over, correct?
A Yes.
Q Can you give us the estimate of the number of times he yelled roll over before he hit Mr. Dawson in the forehead?
A I would say at least three to four times.
Q Now when he says roll over, how much time between each time he says it?
A I would say five seconds or more.
Q So roll over, then waits five seconds, Mr. Dawson does nothing?
A No.
Q He doesn’t roll over?
A No.
Q Nor does he do anything aggressive?
A No.
Q He doesn’t flail punch or kick?
A No.
Q Then the motorcycle officer says it again, roll over?
A Yes.
Q And the same thing as the first scenario we have just been through happens each time?
A Yes.
Q Then the police officer punches Mr. Dawson in the forehead with his right hand?
A Well, he knelt down and I believe he said one more time roll over, tried to roll him over and at that point Mr. Dawson was resisting.
Q Let me make sure I have that picture clear in my mind. The first three or four times is the police officer standing?
A I would say the first two times he was standing. Third time…
Q He kneels?
A He was kneeling.
Q So he kneels and says roll over and makes a movement as if to start to roll Mr. Dawson over?
A Yes.
Q And Mr. Dawson is not helping to be rolled over?
A No. He is helping not to be.
Q He is holding himself rigid?
A I would say that.
Q Then strikes him to the forehead. Are you able to help us as to whether it’s one side of the forehead, the middle?
A Yes, it is the left side of his forehead.
[M.S.]
[M.S.], an employee of BC Tel was working on a house at [address deleted] when he heard shouting and then a police siren. He provided a statement to RCMP Cpl. Scott Braes.
"…I observed, it looked a naked man and a police officer and they were wrestling. I realized there was cars coming really close to them and I thought oh, gosh, someone’s gonna get hit, hurt, so I started to jog down the street to about maybe five or six houses and as I was doing it, another fellow pulled over in a car. A big burly fellow came out and came to help and he went and asked the officer to, to help him, if he needed help and the officer basically was nodding his head. He was trying to wrestle with the fellow."
Further in the narrative of events [S.] states:
"But he was trying to elbow the, the officer in the head and I was going to jump in and then I could hear all these sirens coming and I thought well it’s better to keep the traffic away from hitting these guys and so the other officers could get in and so as I was doing that, I saw the, I could see sirens and hear some sirens and flashing lights…"
"I saw his arms like cause he kept bringing his, he’d whip his arm out and whip it around and try and, it looked like he was trying to strike the officer …"
Mr. [S.] elaborated somewhat on his observations during the Inquest in response to questioning from Mr. Orr:
Q Were you able to see how the police officer had a hold of Mr. Dawson?
A Yes. He had him, he was having real problems holding the man because he was naked and he couldn’t get a firm grip and Mr. Dawson had, looked like a scrape on his right arm on the under side from the elbow area. And it looked like he was trying to put his elbow into the police officer’s face so the officer was underneath and behind him and then would shove forward and try to get a lock like across the chest, the arm across the chest and hold him by pressing himself against him. But then Mr. Dawson’s arm would come back up towards his face and the police officer would snap his head out of the way because he didn’t want to get blood in his eyes it looked like.
He was having a heck of a time getting a good grip on him. He couldn’t get a good hold because the angle he was, because Mr. Dawson’s head was jacking back and forth around this area where the police officer was holding between his arms and he didn’t want his head to smash into the pavement so he was trying to hold him and at the same time restrain him and it was very, very difficult for him to keep a grip.
CST SHELDAN
Cst. Sheldan provided a will-say statement at the request of Det. Semkiw. In it he states the following:
"When I was in reach of the male, he immediately struck out with his right fist punching me in the centre of my lip. I sustained a cut to the inside of my lower lip and a bruise to the right side of my nose. I moved back from the male but he was now appearing to sit up prior to fleeing. Due to the urgent need to restrain the individual, I again approached and tried to restrain him via an arm hold but due to the excess sweat on him, I was unable to effectively restrain him. While continuing to try to obtain an effective hold on the individual, I was unable to contact anyone by radio. I then observed a male known by myself to be a sheriff/security officer at the SW corner of Bank/Oak Bay who asked if I required assistance. I stated yes and when he was able to gain hold of the person’s arm, I was able to use the radio to indicate I now needed further assistance. At this point the male was rolled over onto his stomach and I was attempting to gain control of his arm so that handcuffs could be applied. On the arrival of subsequent police unit(s) the male was finally restrained and placed prone, face down on a PAS stretcher.
Cst. Sheldan’s evidence was obviously of tremendous importance during the Coroners Inquest that followed. During his examination in chief and in cross examination he was questioned repeatedly about his actions during this incident.
In examination in chief by Mr. Orr there was the following exchange:
Q You’re going to have to describe it a little more carefully because we’ve
heard witnesses saying that that looked to them as a punch. They said there were two rapid movements like that?
A Yes, sir.
Q Can you describe that as carefully as you can what you were trying to do and what you did?
A I’d have to start prior to that to explain in all fairness what an arm bar takedown is and the way that it’s taught. An arm bar takedown involves if two persons are standing an officer taking control of a person’s arm in this case, quite likely the wrist area, sort of drawing it down to the officer’s body, stepping back and at that point using the opposite arm from the officer, pushing and using weight and in turn dropping the person to the ground. The second, if you will, stages take place where the officer is then pinning his left and right knee on either side of the shoulder area of the individual, taking grasp of the arm firmly and holding it, pinning it between your closed legs. So you’re actually pinning the shoulder area to the ground; you’re taking control of that arm, and then you carry on if you can, or, if not, using other techniques. That grip that you’re trying to achieve is intended to immobilize the person; once you have them into that grip they’re not able to move. It’s got so many variables. Your intent is to take control of the individual, told them in a position where you can handcuff them if possible.
Further on in examination in chief:
Q What were you trying to do?
A Place my right arm in behind his shoulder area, which would have been his right shoulder area, and turn him and drive him down towards the ground area, and then position my knees on either side of his upper arm, on this area of his arm where it connects to the shoulder area, and take control of it.
Q So why did you have your hand closed to that manoeuvre?
A I don’t recall.
Q A number of the witnesses, and I think you’ve heard them, have said that it appeared as if you were doing a quick jabbing motion with your fist. Was that the sort of motion you were doing?
A I recall at this point one very rapid movement by myself, and it would have been either with a partially closed or a closed hand, and all of the training we do, everything is applied in a dynamic procedure. There’s no validation of any of the restraint techniques, anything like that, in a very slow, methodical sort of a way. If you tried to do it that way it won’t be very effective, so we’re taught to do it in a dynamic method. The dynamic method is to position my arms, my body wherever necessary as fast as I can.
Q So you were trying to get your right hand over on to his right shoulder?
A And past.
Q And past his right shoulder?
A Yes.
At the conclusion of the examination in chief Mr. Orr explicitly addressed the issue of excessive force:
Q Constable Sheldan, I think you’re very clear and it’s not secret to you that the concern is being raised that too much force was used in restraining Mr. Dawson?
A Yes, sir.
Q And that you---there’s been suggestions from witnesses that you punched him at least twice, and one witness said three or four times, that you used too much force in restraining him. Would you respond to that suggestion.?
A I disagree absolutely with that, sir. We’re trained in our use of force that it’s actually allowed right in our documentation to use empty-handed impact, in that you don’t have a device in your hand. There’s different types of stunning blows, there are brachial stuns, there’s types of blows that are used against large muscle mass areas, distraction techniques. If I’ve used an impact, I’d simply say the type of impact that I had used because it is completely within my right, and because of the situation and the level of force and violence that I was faced with, I would simply say the type of impact that I had done.
Q So you’re saying if you had used it, you wouldn’t be ashamed to say you had used it because it’s within a reasonable degree of force?
A Yes, sir….
This line of questioning was pursued by Mr. Brooks during his cross-examination of Cst. Sheldan.
Q Your next movement with your hand you told us I believe was to move your arm back; is that right?
A From this position. Mr. Dawson is already going to take off again in my mind. He’s rolling, his hands are here, he’s moving and twisting his body. While my head snaps back, I’m more like this and reaching forward, so from various angles certainly my upper body would have twisted, and then reaching forward to get a grasp behind the shoulder area certainly.
Q Did your arm come back?
A To some degree it would have come back.
Q But you’re telling us it did not come back in the motion of a punch?
A From some angles some people may have interpreted it as a punch certainly, sir.
Q But you told us that the motion was done once?
A Yes, sir.
Q You’ve heard people say it was done twice?
A Yes, sir.
Q Your evidence is that the motion was not done twice?
A Not to my recollection, no, sir.
Q Or done as many as four times, but you say it was the once?
A Yes, sir.
There is some obvious conflict between Cst. Sheldan’s account of what took place and the recollections of some witnesses. Sheldan describes driving his hand onto Mr. Dawson’s shoulder in an effort to place Mr. Dawson in an arm bar hold. [J.A.] describes two punches "in the side of the head or sort of in the neck or face area". [K.A.] locates the blows as being "the upper shoulder, neck, left side of the face area." The [A.]s both recall the blow being to the facial area. [C.D.] could not state where the punches he observed fell, nor could [S.M.]. [C.H.] felt the two blows he saw landed on the "side of the cheek." [H.P.] describes a single blow to the "left forehead."
Given the varying accounts provided by eyewitnesses the findings of the Forensic Pathologist take on a greater importance in reaching an objective assessment of the degree of force employed.
The Postmortem examination conducted by Dr. Gray on August l6th, 1999 made a number of findings relevant to this issue. In her Commentary Dr. Gray states:
"there were a number of nontextured friction abrasions to the elbows, knees, face, and torso. These would be consistent with the struggle described by witnesses and the involved law enforcement officers. These injuries, of themselves, were trivial in nature and did not contribute to death in any material way."
In her internal examination of the scalp and skull Dr. Gray noted "There was no evidence of bruising on the undersurface" and "There were no palpable facial fractures."
Again in the Commentary Dr. Gray observes "There were no external injuries to the neck with the exception of a tiny bruise on the left side. There was no superficial or deep bruising into the strap musculature to indicate external application of a compressive force."
Dr. Gray’s observations were reviewed during the Inquest. During this process she testified as to what she had observed during the autopsy:
"The text of my report documents the injuries that were observed. There were a lot of injuries, but the vast majority of them all were very trivial in nature and took the form of small scrapes, friction marks on his knees and ankles, elbows. There were a number of small bruises and scrapes on his face. As I indicated, there were no broken bones, no injuries to his mouth. There were no haemorrhages in the eyes; there were no marks of injury to his neck; no evidence of any disruption of any of the joints. There weren’t any large injuries to suggest that a weapon had been applied, a rod or boot sole or any instrument of that nature. "
Following the initial struggle between Cst. Sheldan and Mr. Dawson off-duty Sheriff [G.M.] stepped in to assist Cst. Sheldan. [M.] had been driving past the scene when the events caught his attention. In his statement, given the day following the incident, to Det.’s Lindner and Bruce, he stated:
"…so I identified who I was, an off-duty ah deputy-sheriff, and ah and I asked if he needed any assistance. The police officer said ah something to the-words to the effect of "Yes, grab his right arm." At that time I um I got in close and ah proceeded to try to grab the right arm of the subject um to ah control him. The subject was kind of in a crouched position um on the ground and ah basically this struggle ensued. Ah, the subject was incredibly st-strong I found and it was hard for me to grasp on. It felt like he was ah he had a lot of sweat on hm and the subject kept pulling his arm in. I’d try pulling the arm out. Ah eventually this ah police officer passed me his ah set of handcuffs and ah I attempted to put one cuff on and ah the subject again like again was flailing about and the ah handcuffs fell to the ground. I flicked the cuffs in front of me on the ground so that they were in front of me and attempted again to gain control of the arm. Ah I finally got ahold of the arm and um the cuffs were now ah and they were not in a pre-loaded position, they were open so it was it was difficult but we finally got the one cuff on and eventually we got the second cuff onto his left hand. At this time ah ah the subject was still trying to get up."
Det. Bruce then asked:
B Is that essentially the only part of him that you contacted was his
M His
B arms?
M right arm.
B His right arm?
M His right arm.
B And that was at the direction of the uniform police officer
M That’s correct….
When Cst. Hemstad arrived at the scene, the second police officer to arrive at Bank and Oak Bay, he observed Cst. Sheldan and Sheriff [M.] engaged in the struggle. During examination in Chief by Mr. Orr during the Inquest Hemstad related what he observed on his arrival at Oak Bay and Bank St:
Q What did you do? You’re still in your car at this stage; is that right?
A Got out of the car, walked up to what was going on. I remember Constable Sheldan advising me he took a punch in the mouth, and I remember thinking, I knew that was going to happen. I joined in, grabbed the legs of Mr. Dawson that were flailing around. He was attempting to get away from these two people, and it was at that point I think he was turned on to his front in an attempt to put handcuffs on him.
Later during the examination Hemstad described the efforts to control Mr. Dawson:
"It was basically a struggle. Constable Sheldan had the upper arms area, the larger fellow, who was later identified as a sheriff at the courthouse, was trying to control his arms to get him turned over with his arms out behind him and get handcuffs put on to him. He was bending his knees, kicking his legs, so I grabbed his ankles and held them together so he couldn’t do that. It was very difficult to get his arms out from underneath him as he was quite a strong individual, and it was at that point that more police arrived;
Witness [J.A.] described [M.]’ intervention to Scott Braes:
SB And you indicated that he helped by holding the naked man down, by holding his shoulders down?
JA Yeah, he pushed him like down on the ground and held him down, like sort of kneeled on his shoulder, or shoulder and chest area, around there somewhere. And he was a really big guy and with the cop and him sort of holding him down that, they sort of had him under control at that point completely.
[K.A.] stated:
KA No. So if like the naked guy is lying like this, his head’s right here. The purple guy ([M.]) came up to this side, kind of sat on the guy’s left side and kind of leaned with his head and his arm down towards the chest, neck, area. So the…
SB So he’s facing him and leaning on this person from the left side?
KA Yeah.
In [R.A.]’s statement to Det.’s Semkiw and Bell he related the following:
"A bystander um, initially, that’s one point I did forget to mention. A bystander ah came off from across Oak Bay Avenue, from across from my office, on the corner of Oak Bay and Bank and asked the officer is he could assist and the officer um asked him nicely if he could and help him to get control that I felt the fella was trying to grab hold of the individual’s legs and from that point again, I can’t go any further as far as what details I may have seen."
In [C.D.]’s statement to Det. Semkiw he described [M.]’ actions as "holding":
S so you got a pedestrian comes-what does he do?
D He was just trying he was just holding-he looked like he was holding his-one of his arms.
[M.S.], the BC Tel employee who ran to the scene from Bank St stated:
"A big burly fellow came out and came to help and he went and asked the, the officer to, to help him, if he needed help, and the officer basically was nodding his head. He was trying to wrestle with the fellow. And so they both, he held the, the police officer had the upper body, the other guy had the lower body and they held him and I realized cars were still coming close, so I stopped the traffic and began to direct it around the incident."
There were allegations made that Sheriff [M.] may have sat or kneeled on Mr. Dawson’s chest during the struggle. During her testimony at the Inquest Dr. Gray stated the following:
"As I indicated, there were no burst blood vessels in his eye which one would expect if there was a weight on his chest or a compressive force applied around the neck. We saw no evidence of bruising of any of the neck muscles, no evidence of any injury to the voice box or to the hyoid bone. There were no rib fractures; there was no bruising of any of the muscles of his chest wall, no bleeding into any of his body cavities, no injury to any of the solid organs such as the liver and spleen, no evidence of infection other than some early bronchitis which is frequently seen in comatose individuals."
Dr. Gray’s observations were confirmed by Dr. Gleason, the intensivist who attended to Mr. Dawson in the Emergency Room. Dr. Gleason was shown autopsy photos that documented the extent of Mr. Dawson’s facial abrasions during the Inquest:
Q I may have asked this at the beginning but just to be clear, the markings you saw there (on Mr. Dawson’s face) are consistent with markings you saw on him while he was alive?
A If I looked at my notes again I’m sure I described he had some superficial abrasions. To me this is considered a superficial abrasion.
Q Are any of those injuries consistent with a punch?
A Punching usually involves having bruising of the tissues surrounding the abrasion and a punch usually doesn’t cause an abrasion unless somebody is wearing something on their hand that’s going to abrade the skin because, remember, it’s skin hitting skin. It’s likely that you would break bone or cause bruising of the area. But an abrasion is usually from something that is scraping the skin.
During a re-examination by Mr. Brooks the following exchange took place:
Q So if you heard he was held in a hold that resembled a choke hold you would have to take that into account?
A I would have to sit and weigh the possibility of that being a potential theory and seeing how that fit into what the evidence is. If you are asking me based on what I know from experience and what I saw and what I understand I would have to say I didn’t find any evidence of that.
During a subsequent cross-examination conducted by Ms. Brown Dr. Gray clarified what she believed had lead to the death of Mr. Dawson:
Q Dr. Gray, I just have a few questions to clarify a few things. First, in respect to your comment that Mr. Orr asked you about a change to your report as to the evidence of Dr. MacLeod. You said no, and that you believe Mr. Dawson suffered a restraint-associated cardiac arrest. I just wanted to clarify what you meant by that. Do you mean the cardiac arrest occurred during the restraint or caused by the restraint?
A It was associated with the restraint. I believe there were a number of factors, one of which may be Dr. MacLeod’s theory and findings, the physiologic and psychological stress associated with an encounter with the police, the process of being handcuffed, the fight or flight syndrome, elevated body temperature, probably physical exhaustion.
Q So if I understand correctly that it’s not the physical actions taken in restraining him; it’s more the reaction of Mr. Dawson to the circumstances of restraint?
A That’s correct. The problems he would bring to the restraint, if you will, in terms of whatever drugs or other illness, that would make him susceptible to a cardiac arrest, such as pre-existing heart-disease.
Q Just being restrained would contribute to it as well?
A Yes.
Q You were asked by Mr. Brooks whether some of the marks on his face could have been caused by a punch and you said they could. Are there any other things that that’s consistent with?
A Banging his head against a number of structures, the pavement. There were no lacerations, no bony fractures to his facial bones.
Q Mr. Brooks also asked you about positional asphyxia if someone was kneeling on his back. Do you anticipate seeing any marks on his back if that happened?
A The skin is very thick there. If such an incident did occur and was maintained for a period of time, at least to render him unconscious, then I would expect to see a lot of petechial haemorrhages on his neck, on his chest, on his face, an indication of the raised venous pressure above the point of obstruction.
Q You did not observe those?
A No.
From all the medical evidence and the observations of witnesses at the scene it is clear that Cst. Sheldan made two rapid downward movements with his hand directed at Mr. Dawson’s shoulder, head or neck. Whether these were punches, closed hand impact techniques, or the preliminary moves to initiate an arm bar takedown there is no evidence that these caused any significant physical injury.
Although witness [J.A.] described Mr. Dawson being placed in a "headlock", which he equated to a "chokehold" in subsequent questioning, there was absolutely no physical evidence to substantiate the allegation of the use of lateral vascular neck restraint or a bar arm choke. (This is not to suggest that the use of lateral vascular neck restraint would necessarily be inappropriate, as some American police agencies advocate the use of this technique for controlling individuals in a state of excited delirium.)
With respect to Sheriff [M.], who was arguably acting under Cst. Sheldan’s direction at the time of this incident, there is likewise no evidence that his actions were the cause of any significant injury, in particular there was no evidence to substantiate the allegations that he may have contributed to Mr. Dawson’s respiratory failure by kneeling on his back.
Regardless, however, of the absence of significant physical injury, the question still remains as to whether or not the actions of the officers, in particular Cst. Sheldan, could be accurately construed as an excessive use of force in all the circumstances.
Sgt. Darren Laur of the Victoria Police Department was called to provide expert evidence on the police use of force during the Inquest. During his cross-examination by Mr. Considine there was the following exchange:
Q Sergeant, I would like you to take the situation as we’ve been hearing over the last few weeks in regards to our case. I am going to outline some circumstances for you and I won’t outline all of them, but I will outline what I think are the essential ones.
The history is that a male, semi-clothed is seen weaving in and out of traffic, then there’s an encounter by the police and the ambulance service with that male in the middle of Oak Bay Avenue by Richmond Road, I think we’ve heard described; that that male then takes off his remaining clothing so he is totally naked. He then leaves the scene where the police and ambulance have been trying to verbally bring him under control, flees down the centre of the roadway, there’s traffic obviously on the roadway –both vehicle traffic and civilian pedestrian traffic on the sidewalks.
He comes into the Oak Bay village. He then lies down again in the middle of the road in the centre line area, civilians still around, there is still traffic around. An officer who is in pursuit comes up to him. As he approaches the individual in the middle of the roadway and speaks to him he-an arm comes up from the individual who’s naked on the roadway and hits the officer in the side of the face. The officer then moves to restrain this individual by use of arm bar technique and grapples with him for a period of 30 seconds, perhaps a minute, has the assistance of a civilian coming to help him restrain this person and then further officers come to help restrain.
Q Do the officers’ actions seem to be reasonable to you under the circumstances?
A Yes, they do.
Q And why would that be within your model?
A Because on the first encounter verbal compliance didn’t work. He actually escaped so you know the presence and communication skills weren’t working. He’s running down the street naked, showing the signs of a psychosis of some type, who knows if it’s mental, drugs or alcohol-related. If he’s running down the street and there’s traffic, we have a duty at that point in time to try and prevent him from getting injured, either by a car hitting him or him accidentally jumping in front of a car.
So at that point in time I would classify his level of resistance as active insofar as he’s running away, but as soon as he goes to the ground, the officer is going in and that arm is flung out, he’s now become assaultive in nature.
So at that point in time in that scenario-in fact I think in that scenario the officer probably used maybe a little lesser force than was necessary. In other words, he was trying to deal with this individual at a soft empty hand control technique; in other words, if he wasn’t striking, if he was just trying to put an arm bar and control him that’s, in fact, a soft empty hand control technique so it’s very low in force options. Whereas in some situations, in fact-I mean if I was rolling around with him on the ground and he was resisting like that, would I have struck the stun? Yes, I would have. Would I maybe have thought about placing him into a lateral neck restraint? Yes, I would have in those situations.
Again, the purpose of that would be to immediately control the situation because the longer it goes on, the greater the danger, not only to the subject but also to the officer.
Based on Sgt. Laur's testimony it is clear that the circumstances facing Cst. Sheldan during his initial encounter with Mr. Dawson make it reasonable for him to utilize stunning blows to take Mr. Dawson into custody, based on the use of force model employed by the Victoria Police Department. Thus, the highest level of furce usage that could be reasonably attributed to Cst. Sheldan, based on the most negative interpretation of what was seen by witnesses, was still within acceptable limits.
During the course of the Inquest there was a great deal of attention directed towards the positioning of Mr. Dawson onto the ambulance gurney. Mrs. Dawson makes specific reference to the face down positioning of her son on the gurney in her Record of Complaint, stating that it was impossible for Mr. Dawson to breathe in that position. The general issue of positional asphyxia, as opposed to this specific situation, is dealt with in more detail later in this document.
Cst. Hemstad was questioned about Mr. Dawson’s body positioning during the Inquest in his cross-examination by Mr. Brooks:
Q Then everybody who’s there grabs him and puts him on the gurney; is that right?
A Yes.
Q He’s put face down?
A Yes.
Q Is that discussed or is that just done?
A Well, that particular day it was just done, due to the level of resistance. He was already face down to get the cuffs on, and it was just a short distance of about two feet to up and on the stretcher.
Q Have you ever had any concern about putting somebody face down on a gurney about their ability to breathe?
A No, but Mr. Dawson’s nose and mouth were not covered. They were to his left and he was breathing fine because he was screaming and yelling the whole time.
Cst. Saunderson also provided evidence relevant to this issue during his examination by Mr. Orr:
Q And you were present and assisting in that process during the time that Mr. Dawson was secured to the stretcher?
A Yes, I was.
Q Did Mr. Dawson continue to struggle during that process?
A He certainly did.
Q And did he make any sounds?
A He was yelling the entire time.
Cst. Knoop arrived with Cst. Saunderson. He described the placing of Mr. Dawson on the gurney in answer to a question from Mr. Orr:
A I think when he went down he went down, sort of landed on his butt and then onto the side because he was still moving and contorting his body and I think at that time it was simply probably just a collective decision by almost everybody to get him flatly on the ground and this way we can control his whole body and he can’t move anymore.
Q So when you go him on the stretcher the second time then, he’s face down and you’re at his feet?
A Yes.
Q Could you see how his head was positioned?
A I couldn’t, no. I could still hear him though.
Q And during the time that he’s being restrained or strapped onto the stretcher, did he continue to struggle?
A Yes, he struggled until we finished completely. Actually he struggled until we pretty much put him in the ambulance.
It is clear from the evidence of the involved officers and witnesses that there were two attempts made to place Mr. Dawson onto the gurney, and that during the struggle he was placed face down . The issue is the effect this placement had on his physical condition, particularly with reference to whether his positioning compromised his respiratory function and contributed to his death. Dr. Gray’s report had discounted this possibility, concluding that "The period of restraint appeared to have been short-lived and positional asphyxia per se is not considered to have contributed materially to this man’s death."
Dr. Gray was questioned about this by Mr. Brooks:
Q Let me be specific about this. So a person who is restrained face down on an ambulance gurney, are you telling us that that has no adverse effect on their ability to breathe?
A The term face down that I thought you were using was prone, not necessarily with the face in the mattress. It is my understanding, speaking specifically in this case, that the individual was prone with his head to one side.
Q Just assuming that this is the case, are you telling us that there is no negative effect on a person’s ability to breathe.
A I don’t believe so, no.
On re-examination by Mr. Orr Dr. Gray was consistent in her evidence:
Q So from the objective evidence that you saw a (sic) autopsy, would you say that in Mr. Dawson’s case there was any objective evidence of asphyxia?
A No.
The medical evidence makes it clear that the positioning of Mr. Dawson on the ambulance gurney had no impact on the outcome of his situation.
Recommendations
Having investigated the above matter as a Public Trust Complaint I make the following recommendations:
I believe that the facts disclosed in this report do not support that Constable Jonathan Sheldan committed the disciplinary default of abuse of authority on August 11. 1999.
I believe that the facts disclosed in this report do not support that Cpl. William Trudeau, Cst. Dale Saunderson, Cst. Mark Knoop, or Cst. Lawrence Hemstad committed the disciplinary default of abuse of authority on August ll, l999.
I therefore recommend that the Discipline Authority take no action against these members of the Victoria Police Department.
Excited Delirium
In the Report of Postmortem Examination prepared by Dr. L.H. Gray the second of nine principal pathological findings included "Agitated Delirium state by history. Hyperthermia."
In the body of the Postmortem Examination Dr. Gray states further:
"This man presented to law enforcement and medical attention with manifestations of the so-called agitated or excited delirium state. These individuals typically demonstrate violent agitated combative behaviour. They are usually found to be suffering from a psychiatric state or under the influence of stimulant drugs. Hyperthermia such as was present in this case is also frequently present. There have been a number of reports of death resulting during application of physical restraint. Suggestions were made these deaths resulted from a positional asphyxia due to a prone or hog-tie restraint position."
The law enforcement community in the United States has been aware of the excited delirium phenomenon for some time, although it was often associated to positional asphyxia. The role of positional asphyxia in these sudden deaths was initially posited by Dr. Donald Reay, at the time the Chief Medical Examiner for King County, Washington. Based on studies he conducted in l988, Reay had concluded that the "hogtie" restraint impaired the breathing process. In response many police agencies adopted policies to raise the awareness of this issue, such as the 1995 "Chicago Police Training Bulletin on Positional Asphyxia" and the Vancouver Police Department’s lesson plan on "Positional Asphyxia and Excited Delirium". In June of l995 the National Law Enforcement Technology Center published "Positional Asphyxia-Sudden Death", drawn from a report prepared by the International Association of Chiefs of Police. The article concluded that most sudden in-custody deaths were associated with cocaine-induced frenzied behaviour, drug or alcohol intoxication, violent struggle with arresting officers, and the unresponsiveness of the subject during or immediately after a struggle.
In an Ontario study published in the Canadian Medical Association Journal in June of l998 entitled "Unexpected Death related to restraint for excited delirium: a retrospective study of deaths in police custody and in the community" a panel of five doctors, including the Chief Forensic Pathologist for Ontario and the Chief Coroner, reviewed twenty-one cases of unexpected death in people with excited delirium. The following results are taken from the abstract of that article:
"Results: In all 21 cases of unexpected death associated with excited delirium, the deaths were associated with restraint (for violent agitation and hyperactivity) with the person either in a prone position (l8 people (86%)) or subjected to pressure on the neck 3(14%)). All of those who died had suddenly lapsed into tranquillity shortly after being restrained. The excited delirium was caused by a psychiatric disorder in l2 people (57%) and by cocaine-induced psychosis in 8 (38%). Eighteen people (86%) were in police custody when they died. Four (19%) had been sprayed with capsicum oleoresin, and heart disease was found in another 4 at autopsy. The blood level of cocaine in those whose excited delirium was cocaine induced was similar to levels found in recreational cocaine users and lower than levels found in people who died from cocaine intoxication."
The role of positional asphyxia in deaths associated to excited delirium was called into question in l998, during an in-custody death case launched against the County of San Diego. The defendants in this case commissioned a new study conducted by Dr. T. Neuman of the University of California at San Diego. This study refuted Reay’s l988 study and his findings that the hogtie restraint prevented the lungs from replenishing the blood’s oxygen supply. Dr. Reay himself reviewed the new study and agreed his earlier findings were faulty. In her post-mortem examination of Mr. Dawson Dr. Gray concluded "The period of restraint appeared to have been short lived and positional asphyxia per se is not considered to have contributed materially to this man’s death."
The issue of positional asphyxia was canvassed with Dr. Gray during the Inquest:
Q Something that Mr. Orr suggested to you, and I’m not sure what the extent of your agreement with him was, and I want to ask you this. He asked you about the significance of positioning. I believe your answer was that the positioning itself may not play a major role, and then he said, if I understood his questioning, that it was thought at one time that positional asphyxia was very important and that might have been refuted now. Is that the way you read the literature, that positional asphyxia has been refuted now?
A Positional asphyxia in the sense that individuals handcuffed in a prone position and/or hogtied was that special sub-category of Don Reay’s work that has been looked at, so the position itself does not appear to have a lethal effect on respiration.
Q What was the theory that said that restraint of a person face down and prone did have some effect on people’s ability to breathe?
A That was the initial work of Don Reay and others, but they looked at a wide group of cases from different jurisdictions where the time of restraint had varied and obesity factor varied very much. There weren’t really very strict criteria that were looked at in all cases that were thought to have been positional asphyxia, restraint asphyxia, were in fact acute cardiac events such as we’ve discussed earlier today.
Q Are you saying that the restraint of a person in a prone position face down has no effect on their ability to breathe?
A That should not have any effect on their ability to breathe, with the provision that if you’re very obese or perhaps the surface on which the individual was lying was uneven or if the head is suspended, but there doesn’t seem to be any significant impairment in oxygen exchange in a normal person restrained for a reasonable amount of time.
One of the leading authorities on the issue of excited delirium is Dr. Steven Karch, the assistant medical examiner for the City and County of San Francisco. In September of l999 Dr. Karch and his colleague Dr. Boyd Stephens presented a paper on this topic during the Royal Society of Medicine’s conference on "The Medical Aspects of Death in Custody". In that presentation Dr.’s Stephens and Karch stated the following regarding excited delirium:
"In some cases death occurs at home, unattended. More often, police come into contact with the deceased during the phase of psychotic agitation, just as death is about to occur. A struggle will ensue, and chemical incapacitating agents, capsicum spray in the US or CS spray in the UK, may be employed with no effect. In the average case, the concerted efforts of five or six officers will be required to finally force the victim to the ground and apply restraints. Respiratory arrest tends to occur shortly after the restraints are applied, while the victim is on the ground or being transported. If attempts at resuscitation are successful, almost all victims die of rhabdomyolysis and multisystem failure a few days later."
Excited delirium and its associated hyperthermic state are often associated with the long-term abuse of stimulant drugs. Dr.’s Karch and Boyd observed the following:
"Today, most victims are chronic, long-term, high-dose stimulant abusers . Initially hyperthermic, they soon become psychotic, experiencing several hours of violent agitation. Cardiac arrest occurs a few hours later."
In this particular case Dr. Gray noted :
"This man was hyperthermic with an elevated body temperature 40 degree Celsius or more. This hyperthermia of itself may be associated with central nervous system dysfunction. While the usual drugs associated with hyperthermia were eliminated on the basis of toxicological screening, some studies have suggested that marijuana (Cannabis) may predispose to hyperthermia in the course of intoxication."
It was subsequent to the Postmortem Examination that Dr. P.M MacLeod came forward to Coroner Dianne Olson. In a report dated October llth, 2000 Dr. MacLeod suggested that Mr. Dawson’s death was caused by a very rare predisposition to develop a profound metabolic crisis, the result of a metabolic disorder that had been previously documented in another member of Mr. Dawson’s extended family. It was Dr. MacLeod’s opinion that a triggering event or combination of events such a sleep deprivation, fasting, exertion, or stress set off a metabolic crisis with accompanying hyperthermia.
Dr. Gray summarized the causation of restraint-associated death during the Inquest in the following statement:
People have postulated a number of probable interactive factors: stress load from the situational stress; stress of being restrained; abnormal hormones being produced in the fight or flight mechanism; elevated body temperature; physical exhaustion. There seem to be many, many different factors all working together, probably of greater or lesser importance in individual cases. Then if there is already a substrate that would further increase the likelihood of the heart stopping, a cardiac arrest, then the likelihood becomes even more. Such a substrate could include something like cocaine, because cocaine does elevate the blood pressure and the heart rate goes faster, and again, they’re already primed with the normal fight or flight hormones, and one of the effects of cocaine is that those hormones don’t get absorbed up into the heart muscle, so that can cause a very sudden cardiac arrest that may be extraordinarily difficult to resuscitate.
Dr. MacLeod’s suggestions this morning I listened to with great interest because that would be another substrate to increase the likelihood of such a cardiac arrest occuring to one restrained.
So it’s not the restraint per se that causes the arrest, but it’s all the other physiologic effects associated with the restraint that connect together to produce such an outcome.
Regardless of the causation, whether by drugs, psychiatric illness, or a very rare genetic disorder, excited delirium was both a significant factor and an appropriate focus for recommended training and research.
To further my understanding of this issue I contacted Dr. Karch by telephone. In my discussions with him he made the observation that excited delirium is a seasonal phenomenon, occurring only when the ambient air temperature is high enough to thwart the victims’ efforts to cool themselves. This would correspond with what was observed in the Dawson incident. Sgt. Farrell’s investigation included data from Environment Canada which indicated the average temperature on August 11th, 1999 at Victoria Harbour was l8.8 degrees Celsius.
With respect to the issue of restraint procedures that could lessen the chance of sudden death Dr. Karch stated that he was not aware of any technique or technology that could appreciably lessen the risk. Sgt. Laur has had some anecdotal reports from the Los Angeles Sheriff’s Office that indicate that use of the Taser may be a viable option, but this is far from conclusive.
From the perspective of investigators of sudden deaths where excited delirium may be involved Dr. Karch provided a number of indicia of whether or not excited delirium has been a causative factor. These include recording the victim’s temperature, ensuring the documentation of changes in brain dopamine and kappa receptors during postmortem examination (these can only be detected if the brain is removed and frozen within l2 hours after death), and similarly documenting the weight and condition of the heart.
I quote again from Boyd and Karch’s presentation to the Royal Society of Medicine:
"If death occurs while the officers are trying to restrain the victim, the police will be assumed to be responsible. The tendency to confuse proximity with causality becomes very great when the necropsy is cursory or incomplete and underlying heart disease and hyperthermia go undiagnosed or unappreciated."
Recommendations:
-That the Victoria Police Department develop and implement a training program dealing with the issue of excited delirium before the Summer of 2001..
-That the Victoria Police Department develop and adopt policy and procedures for dealing with persons believed to be suffering from excited delirium, in consultation with the BC Ambulance Service, before the Summer of 2001.
-That the Detective Division of the Victoria Police Department develop specific protocols, in consultation with the Coroner’s Office, for the investigation of sudden deaths where excited delirium is believed to be involved.
-That the Victoria Police Department Use of Force Coordinator be given the responsibility for monitoring developments in the management of excited delirium, particularly with reference to possible applications for Taser or other less-lethal technology.
STATEMENTS
An issue raised several times during the course of the Inquest related to the refusal of the involved officers to provide warned statements to the RCMP investigators. All of the involved officers did provide "will-says", or narratives of the event, at the request of Sgt. Semkiw and Cst. Bell, and those narratives were provided to the RCMP.
The nature of the RCMP investigation was one that Sgt. Farrell felt obliged to address at the beginning of his Investigation Report.
"The assignment given to this unit was to complete and review the investigation conducted thus far. It became apparent during various stages of the investigation that there was some misunderstanding about the role of RCMP investigators in this instance. For that reason it is considered important to clarify issues relative to perceptions of the purpose of the investigation. It is not an "internal" type of investigation where the scope is focused primarily on the actions of the police. The investigation covers a much broader range in order to meet the anticipated scrutiny of a Coroner’s Inquest. It is an investigation concerning the death of Anthany DAWSON. The purpose is not to justify, nor to lay blame, but to put into accessible narrative, the activities of all participants in this tragedy by conducting as expansive and thorough an investigation as is reasonably possible. It is not the intent of investigators to provide conclusions, but rather to gather evidence that could reasonably be considered relevant and reliable for those who must determine fact."
This issue was further clarified during questioning of Sgt. Farrell by Mr. John Orr during the Inquest:
Q All right. And what was the mandate of your investigation?
A The mandate was to coordinate and complete an investigation into the sudden death of Anthany Dawson.
Q As I understand from what you just said, this was not a Police Act Investigation of the actions of any police officers per se; is that correct?
A Well, in fact it would be much broader than that because a police—I’m not quite familiar with the Police Act because we deal with the RCMP Act and many others, but in a sudden death investigation that means to me that we would be looking at four possible areas. Is the death either a natural cause; is it accidental; is it suicidal, or is it homicidal. And by homicidal we would break that down into culpable and non-culpable in that-so that was the direction of the investigation that we undertook to look at all the circumstances involving the death of Anthany Dawson.
Although the RCMP investigators declined to draw conclusions in their investigation, it was this material that was referred to Crown Counsel by Deputy Chief J.O. Lane of the Victoria Police Department for their review with respect to the laying of any charges. And as the investigators were seeking warned statements from the involved officers, statements that could be introduced into a subsequent criminal trial without consent, it must be concluded that the investigation could properly be characterized as criminal or quasi-criminal in nature. As such, the law is clear that the officers involved could not be compelled to provide statements to the RCMP. Although it was a moot point in this particular incident, as all the involved officers volunteered statements to the initial investigators, it did raise the larger and more general issue regarding the ability of police supervisors to compel statements from their subordinates regarding matters which were or could become the subject of a Police Act investigation.
Sgt. Marcus Albrecht was questioned on this issue during the Inquest, initially by Mr. Orr, counsel for the Coroner:
Q Is there any requirement for an officer to give a statement apart from the will-say document but a warned statement?
A I think there’s a fine line and if a police officer at all is considered or is going to be considered a respondent in a conduct complaint or a criminal investigation, I think it’s incumbent not to take a statement from that officer unless they’ve had the benefit of consulting counsel and certainly to provide them with the appropriate warnings before that occurs, before any statement is obtained or an attempt to have a statement obtained.
Q Just like any citizen has a right to counsel before giving a statement and a right to decline to give a statement.
A Yes.
Q I’m just wondering, there are some provisions in law where the law requires people to give statements, an example you are required to give an I.C.B.C. report of an accident. Everyone insured by I.C.B.C. is required to do that. You are required to give your name to police officers if you are a driver and so on. I’m just wondering if there are any statutory requirements where a police officer is required in law to give a statement about events that happen?
A I don’t think there is any statutory requirement compelling them to give statements. I think police officers are required to make reports, occurrence reports and give will-says about events that they participated in which is far different from a statement-and to draw a parallel between that and an accident; whereas the Motor Vehicle Act requires you to make an accident report, it doesn’t require you to make a statement, so it doesn’t—it doesn’t compel you to make any admissions as to your conduct or your….
The Oppal Commission of Inquiry into Policing in British Columbia made recommendations relating to this in the final report. The Inquiry noted that police had a right to remain silent during investigations and hearings and that this conflicted with the right of the employer and the public to determine the behaviour of an officer during some incident of alleged misconduct. The solution recommended by the Inquiry was a positive requirement on officers to give evidence during investigations and disciplinary proceedings while providing, presumably through the BC Evidence Act, that such evidence would not be admissible in any other proceeding, including any subsequent civil actions. No action on this recommendation has yet been taken.
The rules of evidence regarding Police Act investigations in situations such as this are not clear-cut. In an effort to clarify some of the issues, the Office of the Police Complaint Commissioner issued a Practice Directive on Statements by Police Officers Relating to Public Trust in October 2000. The Directive provides several relevant definitions and then goes on to lay out guidelines regarding the handling of officer statements. The Directive, although based on the language of the Police Act, is a guideline, not the law.
The Directive defines two categories of officers, a "respondent" who is the subject of the complaint, and a "witness officer" who is not, in the opinion of the investigator, the subject of the complaint. The obvious problem with this categorization is that during the course of the investigation the status of an involved officer may well change, as new information is received. A second problem lies in the determination of status being made by the investigator, who is required to make this quasi-judicial decision at the outset.
The Directive goes on to state that every police officer shall "cooperate fully with investigators in the conduct of investigations of public trust subject to this practice directive."
The categorization of an officer as a "respondent" or a "witness" officer determines what rights an officer has during the course of the investigation. A "respondent" officer is not required to provide a statement to investigators, but may voluntarily offer one. A "witness" officer, on the other hand, is required to meet with investigators and "answer all questions" according to the Directive. Both categories of involved officers have the right to consult with legal counsel or an agent and to have their counsel or agent present during the interview. What is unclear is the role of counsel in such a situation, including whether or not they would be able to direct their client not to answer questions they deemed contrary to that party’s interests.
In the event that a "witness" becomes a "respondent" in the view of the investigator, any statements provided which contain self-incriminating information are deemed to be involuntarily obtained and may only be used in the Police Act discipline proceedings with the consent of the officer. It is crucial to note that there is no protection against this material being used in subsequent civil proceedings, unlike the protection extended to statements made during attempts at informal resolution. It remains possible for such statements to be subpoenaed in any subsequent suit against the Department or individual officers. "Witness officers" therefore may find themselves in a legally precarious position.
In these circumstances it is entirely possible that counsel for an officer would direct their client not to answer any questions during an investigative interview, even though this could constitute a separate disciplinary default. The rationale would be that any internal penalty would not be as severe as the potential civil liability that could be incurred as a result of the evidence disclosed in any statement.
Adding to the confusion are the provisions of s. 50(4) of the Police Act, which states:
(4) In exercising the Police Complaint Commissioner’s powers and duties under this Part in relation to a public trust complaint, the Police Complaint Commissioner may receive and obtain information respecting the complaint from the parties and the disciplinary authority in the manner the Police Complaint Commissioner considers appropriate, including, without limitation, interviewing and taking statements from the discipline authority, the person making the complaint and the respondent.
This subsection appears to authorize the Police Complaint Commissioner to take statements from respondent officers, but whether the Commissioner could compel such a statement is unclear in the wording of the Act. It would appear that there was no such intention, as there is no enforcement mechanism included to punish non-compliance. To date the Police Complaint Commissioner has never exercised his authority under s. 50(4), so the issue remains unresolved.
In an effort to assist in the handling of internal investigations the Police Complaint Commissioner requested Philip Stenning, Associate Professor at the Centre of Criminology at the University of Toronto, to research this contentious area. In June of 2000 Stenning delivered a paper entitled "Rights and Obligations of Police Officers Questioned in the course of Investigations of Breaches of Discipline and of Public Complaints." This paper was subsequently posted on the web site of the Office of the Police Complaint Commissioner. After an examination of the case law and legislation Stenning concluded:
Although I can find nothing in the Police Act at present which specifically requires police officers involved in a complaint, either as "subject" or "witness" officers, to give statements relating to the events out of which the complaint arose to investigating police officers, there is also nothing in the Act which prevents them from being so required.
Section 6 of the Code of Professional Conduct Regulations provides that "a police officer commits the disciplinary default of neglect of duty if (a) the police officer, without lawful excuse, fails to promptly and diligently (I) obey a lawful order of a supervisor of the police officer" and, as I have noted above, current case law in Canada indicates that an order by a senior officer to a subordinate officer to give a statement with respect to his or her activities while on duty is a lawful order. If a formal policy were in place requiring senior officers not to compel statements from subordinate officers under certain circumstances (e.g. if they are "subject officers" in relation to a complaint) this would probably provide officers with a "lawful excuse" for not obeying such an order in those circumstances.
This issue remains unresolved at the time of this writing, and may not be fully clarified unless and until the issue is tested through litigation. This anticipated litigation may not occur for some time as many counsel familiar with Police Act issues advise their police officer clients to provide written statements to ensure their perspective is provided to investigators. Other jurisdictions across the country are struggling with similar issues. In response to my discussions with the Office of the Police Complaint Commissioner their staff have undertaken to obtain a legal opinion from their in-house counsel regarding this issue.
Although I believe there is considerable merit in Prof. Stenning’s formal policy which prohibits senior officers from compelling statements from their subordinates in certain circumstances this is only a stop-gap measure. The Oppal Commission’s recommendations may have to be implemented to ensure a truly satisfactory balance between the public interest in full disclosure of police actions and the rights of individual officers to protect themselves from potential civil suits.
At this time I make no recommendations with respect to this issue.
Racism
It should be noted that there were no allegations of racism contained in Mrs. Nancy Dawson’s Police Act complaint. Nonetheless, this has been an issue raised in the media and the subject of comment by members of the First Nations community.
This issue is perhaps the most difficult of those examined within this report because, in the absence of overt comments or other obvious conduct, it is extremely difficult to assess whether or not behaviours are driven by racist attitudes. If an individual from an identified minority group is treated in a fashion that is assessed by experts as objectively reasonable,as in this case, then it becomes even more complex. It is also important to note that this incident was 911 driven, not a self-initiated action which could have been motivated by racial bias.
As the incident began and 911 operators began receiving telephone calls regarding a male running in traffic, they initially categorized the event as a "Suspicious Person". This was changed to an "Assist Mental Health" at the direction of Cst. Hemstad as the incident developed. In the narrative on the Computer Aided Dispatch associated to this incident Mr. Dawson is described as a "poss Sec 28 male". This is a reference to Section 28 of the Mental Health Act, which empowers police to apprehend those individuals suffering from a mental disorder who pose a danger to themselves or others.
The only descriptors in the Computer Aided Dispatch narrative are "6’, blond hair, no clothing".
There is obviously nothing in this description which would lead the responding officers to assume they were dealing with a First Nations person.
Once on the scene, however, the issue is whether or not the officers made any objectively unreasonable or prejudicial assumptions regarding the cause of Mr. Dawson’s condition, based on his race, that would have lead them to treat him in some way differently than any other person in similar circumstances.
During his examination during the Inquest by Mr. Orr, Cst. Hemstad was asked what he had perceived the situation to be when he had first encountered Mr. Dawson:
Q What was your assessment, your initial reaction? It may have changed from time to time, but I’m just thinking of your initial reaction when you saw him there behaving in that manner. What did you think?
A My first impression was that this man is under the influence of drugs.
Q When you looked at Mr. Dawson on the street, were you aware that he was an aboriginal?
A It didn’t cross my mind.
Q If it didn’t cross your mind, was that a factor or was it not in terms of your assessment as to whether this person might be on drugs?
A Whether the man was an aboriginal or not?
Q Yes.
A It absolutely was zero factor at all.
Q What was it, was it the behavior that you were seeing that concerned you the most?
A Yes, it was the behavior, and I would describe it as extreme, extremely violent. I knew at that point this man in my impression of him is under drugs and as a result of that his behaviour was very violent. I knew at that point that if I was to approach him, touch him in any way I would be involved in a fight, physical altercation, no doubt about it.
Subsequent to further testimony unrelated to this issue Mr. Orr asked Cst. Hemstad the following:
Q If you had known at the time that Mr. Dawson was not on drugs, if you had known that he was not intoxicated, if you had known he was not a mental health patient but was suffering from an illness, would you have treated this situation any differently?
A Absolutely not.
Q Can you explain that to the jury?
A First of all, I don’t see how I could have ever known those things, he was not suffering from those things but he was suffering from something that caused him to act abnormally, what were the factors that caused him to act that way, I could have never known. The police don’t have the luxury to make those determinations; they go on the way the person’s behaviour and whether he’s acting the way he’s acting because of a mental illness or because of drug inducement or some other factor, he’s still displaying a danger to himself and/or others which would cause the police to act in a certain way.
Mr. Brooks followed upon the issue of race during his cross-examination of Cst. Hemstad:
Q Mr. Orr asked you a question about him being an aboriginal person and what it had to do with things, and you told us it had zero to do with things. I wanted to ask you, you did recognize that he was an aboriginal person?
A Not at the scene.
Q So until he runs away you had never noticed that?
A No. As I described him running away, the word "native" never came into it.
Cst. Sheldan was subsequently questioned by Orr as to his initial assessment when he encounters Mr. Dawson lying in the roadway:
Q Did you have an investigative sort of assessment of what you were dealing with at that point? Did you know what the situation was in your mind?
A I knew that there were a number of factors going on here, but I didn’t believe that I was dealing with an intoxicated person, like drunkenness because of the manner that it was going on. I have dealt with people in my line of work that are intoxicated by drugs quite often, and it didn’t seem the same to me the way he was moaning and groaning. I thought actually it was a mental health issue and that it was something internal that was taking place here.
Q Somebody immersed in a psychosis of some sort?
A Yes, sir.
Interestingly, Cst. Sheldan was never asked what, if any, role Mr. Dawson’s race played in either his approach, his assessment, or his selection of force options.
Bill Randall was one of the two paramedics who responded to this incident, attending what had been described to them as a male having a seizure. During the Inquest Randall testified as to what he had observed on his arrival at Oak Bay and Rockland:
A I witnessed this male acting very frantically yelling and shouting and screaming and couldn’t understand anything he was trying to say. Nobody really understood what was going on and he was attempting to remove his pants, and I put my hands on his hands and I asked him not to do that, to leave his pants alone but he made no eye contact with me. He made no indication that he understood or even that I was there and he resisted my hands being placed on him and just pulled them away. He was very strong and I know that that’s a very dangerous predicament for me to be in and it was unsafe for me to attempt any more physical contact.
Randall was subsequently asked about information he had placed on a hospital document relating to Mr. Dawson’s possible use of cocaine:
Q The resuscitation pre-hospital cardiac arrest document which has your name at the bottom of it?
A Yes.
Q It says, Box 54 says "cocaine use history", given by Victoria Police.
A Correct.
Q Did you fill that in?
A Yes I did.
Q So I had asked you a moment ago if you had received any information about cocaine use and you said no?
A I was thinking you were referring to when we were at the scene.
Q All right. So you received that information later?
A Much later, yes.
Q When did you receive that information?
A Perhaps half an hour after we got to the hospital.
Q I see. So at the scene on Oak Bay Avenue nobody had mentioned that to you at all?
A We had – nobody there had provided me with any information as to who this person was or what was happening. I had asked because it is very important that we try and find out who these people are so that when we radio or phone ahead to the hospital to Emergency saying that we are coming in, they can get medical records to assist us in helping the patients that we have. And nobody had a clue as to who we were dealing with or what we were dealing with or why we were dealing with.
Randall’s partner in the ambulance was paramedic John Rainier. During the Inquest counsel for the Coroner also explored the issue of what information regarding possible drug use by Mr. Dawson he received at the scene:
Q Going back to the scene on Oak Bay Avenue by Bank Street, did anybody mention to you the possibility that Mr. Dawson was suffering from a drug overdose?
A I can’t remember that.
Q Was it something you considered?
A I considered it due to his – his traits at that time what he was doing, how he was acting.
Q Have you seen that sort of behaviour in people who have had drug overdoses?
A Yes, I have.
Q And are you qualified to give the patient Narcan?
A Yes, I am.
Q So you could have done that if you thought it was a heroin overdose, for example?
A Yes, Narcan is used for narcotics overdoses and they don’t typically present as Mr. Dawson was presenting to us.
Q How would they typically present?
A For a narcotic overdose?
Q Yes?
A They would be lethargic, even asleep, maybe comatose and eventually it would cause the breathing to cease.
Q Was it something that crossed your mind as to whether you should have given Narcan at the time?
A No, no, just because of his presentation. He presented more as a stimulant type overdose.
In their initial encounter with Mr. Dawson four experienced individuals formed different opinions as to the possible causation of his behaviour. Cst. Hemstad first suspected a drug-induced psychosis, although he subsequently reassessed this and requested the dispatcher to correct the nature of the call to reflect a mental health issue. Cst. Sheldan discounted drugs or alcohol as a contributing factor, and instead believed that Mr. Dawson was suffering from a mental disorder. Paramedic Randall made no assumptions as to the possible cause of the behaviour he observed, while his partner John Rainier considered a stimulant drug overdose as consistent with what he was seeing.
Civilian witnesses who observed Mr. Dawson’s behaviour also formed preliminary opinions as to what was going on. [M.R.] was driving by on Oak Bay Avenue when she and her daughter first observed Mr. Dawson running down the road, and then subsequently followed him to the area of Oak Bay and Bank Street. Ms. [R.] stated the following during her examination at the Inquest:
A No. It was a difficult thing for me to observe because of my own personal experience, and I thought that he was having a psychotic episode, and I recognized that from first-hand knowledge, and I knew that you couldn’t get a word in edgewise, and that was not unusual.
Q If you can just continue with the story as to what you saw because I don’t want to get things out of sequence. Perhaps you can just take us through the events as you saw them?
A Okay. Well, he was on the ground and writhing and rolling on the ground, and I couldn’t see any way we could touch him, and this is from first-hand experience. I don’t touch my own child when she’s like this. I call the Crisis Line. I do not touch my own child.
Q Are you talking about [E.]? (The young women in the vehicle with Ms. [R.])
A No. I have four children.
Q You have a child who has in the past had seizures?
A I have a child who has psychotic episodes.
Q So you have some experience with that?
A I think I have.
Q And that’s what you thought you were witnessing?
A Absolutely, and I had no doubt I couldn’t – I certainly – I felt it was exactly the same as with my own child. There’s a certain emotion, and you know or your sense is when they’re kicking you don’t touch them because it takes specialists, it takes people who know how to deal with somebody. There’s a kinetic energy that surrounds a person when they’re in this state. My daughter is 115 pounds and it’s very difficult for a paramedic to actually get her under control when she’s having one of these episodes.
From the evidence it is clear that non-police witnesses, including paramedics and a civilian witness with extensive experience with psychotic episodes, had formed the same or similar operating assumptions as the attending police officers. It is impossible for me to conclude that racism caused any of the involved officers to reach prejudicial conclusions about the cause of Mr. Dawson’s behaviour.
There is another issue, which although not related directly to the issue of racism, does need to be addressed. It was observed by several witnesses that the police involved in the struggle to subdue Mr. Dawson had stood together once he had been placed in the ambulance and that those officers were observed to be laughing amongst themselves. [C.A.], in her examination by Mr. Brooks, provided her assessment of this:
Q Something at the end of that paragraph I wanted to ask you about and see if you can remember this. After the person is put into the ambulance, the policemen are standing around and did you see them laughing a bit?
A They were standing around talking and just, yes, they were laughing a little.
Q Now how many police officers in that group?
A There was a group of them. I cannot remember how many. Well, I’m guessing, maybe four or five.
Q It was all the police officers that were involved in this group?
A That were talking to each other?
Q Yes.
A As I recall.
Q So whatever number of police officers were there they were in this group standing around and laughing a little bit?
A They were chatting back and forth and sort of like laughing a little bit, yes.
Counsel for the Coroner put this issue to Cpl. Trudeau:
Q Do you remember any laughter?
A Well, I wouldn’t really call it laughter. I think this is obviously before we knew there was anything wrong with Mr. Dawson but after we had finished getting him into the ambulance and then we turned around and we’re all talking about what happened, it was kind of, like, how often do you have to roll around in the middle of Oak Bay Avenue in the middle of the afternoon with a naked man type-of-thing. Of course we didn’t know there was anything happening to Mr. Dawson at the time. I just figured he was a Section 28 or maybe a drug overdose but…
Q You don’t remember if there was any laughter?
A I’m just saying there was some, I guess, I wouldn’t say wide out laughter but maybe some chuckles or something. Like I say it wasn’t really – it was just a talk about rolling around on the street with a naked man type-of-thing.
Questioned about the same issues Cst. Hemstad replied as follows:
Q Was there any laughter?
A Yes.
Q What was that from?
A Policeman talking about what had just happened. It was an extremely unusual situation, quite volatile, and as a result of it yes, there was some – there was some laughter as a result.
Q Was that at Mr. Dawson’s expense?
A It was laughter related to the scene, what had happened. It happens a lot. Some extreme, violent things take place; why it happens I don’t know. Guys will laugh about it, there will be a joke made. It relieves the extreme stress that takes place. It happens a lot.
Cst. Sheldan recalled the events this way:
Q As you stood around afterwards, Constable Hemstad said there was some laughter. Do you remember that?
A I don’t recall, bit it’s quite likely that it did take place. It’s almost a regular occurrence after a stressful situation.
Q Why is that?
A A number of reasons. It’s a means for us to try to calm down after a situation which is extremely stressful, for us to shrug off and say, well, we’re okay, we did what we needed to do and we’re okay. Again, I just think back to the circumstances of the situation and, as I say, I don’t recall laughing.
In examining this issue I sought the opinion of a clinical counselor with extensive experience in working with police officers in the City of Victoria Employee Assistance Program. Mr. Jeffrey Godine was of the view that laughter could reasonably be interpreted in the circumstances of this event as a reaction to stress, as described by Cst. Hemstad. However, it was his opinion that the lack of awareness of the effect this behaviour could have on on-lookers could be addressed in training.