Conducted Energy Weapons and Selected Police Complaints Audits — Issue No. 7

SPECIAL COMMITTEE TO INQUIRE INTO THE USE OF CONDUCTED ENERGY WEAPONS AND TO AUDIT SELECTED POLICE COMPLAINTS

Present: Murray Coell, MLA (Chair); Kathy Corrigan, MLA (Deputy Chair); Eric Foster, MLA; Gordon Hogg, MLA; Leonard Krog, MLA; John Slater, MLA; Joe Trasolini, MLA

2. The following witnesses appeared before the Committee and answered questions:

The following electronic version is for informational purposes only.
The printed version remains the official version.

REPORT OF PROCEEDINGS
(Hansard)

SPECIAL COMMITTEE TO
INQUIRE INTO THE USE OF CONDUCTED ENERGY WEAPONS AND TO AUDIT SELECTED POLICE COMPLAINTS


CONTENTS
Page
Restoring Public Confidence: Restricting the Use of Conducted Energy Weapons in British Columbia	91
D. Eby
C. Hall
Committee Meeting Schedule and Other Business	106

M. Coell (Chair): Good morning. We have two witnesses this morning: David Eby, the executive director of the British Columbia Civil Liberties Association, and Christine Hall, with VIHA.

David, thank you very much for being here. Greatly appreciate your presence and look forward to your presentation. I'm assuming you're willing to take questions at the end of the presentation.

Restoring Public Confidence:
Restricting the Use of Conducted
Energy Weapons in British Columbia

D. Eby: Thank you for having me today. I am the executive director of the B.C. Civil Liberties Association. I'm also a lawyer. I'll start by giving you a bit of background around the B.C. Civil Liberties Association and our relationship with this issue of conducted energy weapons and police accountability. I'll discuss our submissions in relation to Braidwood and our reaction to the response to Braidwood by the province.

I will also provide some brief submissions to this committee in relation to your related mandate of the police complaint audit. I'll keep those brief because I know your intended purpose here is Tasers, but I would like to briefly address that, with leave of the Chair.

The BCCLA has been around for 50 years. In that time we have been very focused on, among other issues, police accountability and, in particular, the policies, procedures, tactics, techniques used by police in ensuring that they are balanced with the rights of individual citizens.

With respect to conducted energy weapons, in particular, we have been very prominent in commenting on what we saw as problems with the introduction of the weapon and use of the weapon by police, including in relation to the death of Clayton Alvin Willey in Prince George, while he was restrained and repeatedly tasered; the tasering of an 11-year-old child in 2010 in Prince George; and the tasering of an 82-year-old senior citizen in his hospital bed in Kamloops in 2008.

As a result of our concern around those cases and others related to transit police and other issues that I'm sure you've heard about, we participated in the Braidwood Inquiry in relation to both phase 1 and phase 2. We were also very pleased to be invited to participate in, and we did participate in, the Braidwood Recommendation Implementation Committee.

On behalf of the organization, I would just like to say congratulations to the province on implementing in good faith and as comprehensively as possible the recommendations of the Braidwood committee. We say this because we have seen a significant reduction in Taser use in the province. It was a reduction that we believed was possible.

Our organization was certainly a supporter of the idea that you could place restrictions on Taser use without placing police or members of the public at risk and that, in fact, it would increase public safety, given the safety risks around conducted energy weapons that we saw.

We also recognize that these restrictions on use of the Taser were put in place despite the objections of groups like the Canadian Police Research Centre, who suggested that governments at their peril would restrict police use of conducted energy weapons because they would place police officers at risk, but actually we see that these restrictions have had beneficial impacts in terms of reducing Taser use.

We believe that there is a need for continuing close monitoring of Taser use, especially in relation to children and seniors. The province should consider a moratorium in relation to use on children or other people based on body mass, and seniors as well, because of a lack of data in terms of the impact of the Taser on people who are of a much reduced body mass. Seniors, obviously, are more vulnerable to a strain on the heart.

With that said, our core concern around the conducted energy weapon has always been and continues to be not just this weapon but the idea that police forces are limited only by budget in terms of the new technologies that they are able to introduce. We strongly encourage the province to assume and maintain its supervisory role in terms of new technologies that are introduced, whether they're weapons, whether they're restraint systems, whether they're surveillance systems. I will give you some examples of technologies that we've seen introduced without what we believe to be adequate oversight

The MRAD, which was purchased by the Vancouver police in the lead-up to the 2010 Olympics, conducts a beam of sound waves at demonstrators, a very loud sound that is intended to disperse demonstrators. The BodyCuff is a restraint device. Something called an IMSI or IMEI catcher is a suitcase-sized device that can capture the identifying signature of cell phone devices and that acts, basically, as a portable cell phone tower that allows the identification of people in rallies or at meetings and, paired with lawful access, would allow such access without a warrant. Police dog training techniques, bark-and-hold versus bite-and-hold training techniques; techniques like the clawhold, which we believe and which the coroner's jury held was, in part, responsible for the death of a gentleman named Brandon Whitelaw; and
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other techniques.

We believe there's a significant role the police services division can play when police are purchasing, when they're introducing new technologies or tactics, in terms of ensuring that research and evaluation of these devices in terms of the benefits and the costs and the risks are done by independent parties — that is, parties independent of police and independent of the manufacturer of the device.

The issue, going back to the conducted energy weapons, of course was that the testing was not done independent of the manufacturer of the device. The province and police did not have sufficient information in terms of the safety, reliability of the device, which didn't just place members of the public at risk but also placed police officers at risk. If the device fails when you expect it to work and you're using it in place of, for example, a handgun, you can be at significant risk. So it's not exclusively a concern for public safety, although that's certainly a major motivator for our organization.

With respect to the police complaint audit process that you either have or will be engaged in, there are just some brief issues that I would like to flag for you in terms of issues that we would appreciate you considering when conducting this audit.

An issue that is of great importance to us is what experts are used by police, by the Police Complaint Commissioner Office in terms of determining whether or not police action is appropriate.

This came to a head in relation to the death Paul Boyd, where an American expert was brought in by the Vancouver police department and then relied on by the Police Complaint Commissioner as well. This expert does not testify ever, that we are aware of, that police force was inappropriate. He trains police officers. He earns his money from that. He publishes articles and police industry publications.

He testifies on behalf of defendant police officers in both civil or criminal processes, so he doesn't match the three key values that we say are critical for experts. We would ask that you evaluate experts against these values: first of all, the independence, both financially and personally, from the investigated force; qualified by an independent and recognized authority in the area that they're asked to be experts on; and that they have testified for both plaintiff and defence or for Crown and defence in matters that they are asked to be expert on — that they're not exclusively testifying for one side or the other.

It's not an issue that we have uniquely identified. Rollie Woods, who's the Deputy Police Complaint Commissioner this year, on the CBC was quoted as saying: "I know the difficulty we have these use-of-force opinions. They are, for the most part, in favour of the police and, in my experience, biased towards the police." He is a former senior Vancouver police officer as well. So it's a widely shared concern, and the province has an opportunity to look at that issue of where these experts come from. That will be an issue for the independent investigation office as well.

We would also ask that you look at the availability of contemporaneous notes made by police officers. There's a case going to the Supreme Court of Canada called Schaeffer v. Wood that has just received leave that talks about the duty of police officers to take contemporaneous notes and whether or not they're entitled to legal advice before making those notes or whether they have to make notes and then consult a lawyer. That will be a very pressing issue and one that's worth addressing in the audit in advance of that case to determine whether or not we require legislation in British Columbia to address that.

On that note, there is another Supreme Court of Canada case called Penner v. Niagara, which suggests that if you file a police complaint and it is determined against you and then you file a civil suit, there's an issue called res judicata, which means that you've raised this issue already, it's been determined, and you can't raise it again in a civil suit.

When people come to us and say, "Should I file a police complaint," we have to tell them: "If you file a complaint, you will not be able to pursue, or you may be restricted in your ability to pursue, a civil claim later on." So we recommend against pursuing a police complaint, and of course, there are cost implications for the province and municipalities on this that matters will be less likely to be resolved through the complaint process, which is cheaper, faster, easier for everybody involved because people will be less likely to file police complaints.

We'd also ask that you please examine at least one police-involved death file, despite the fact that the independent investigation office is now underway. Again, we congratulate the province on undertaking that initiative. The Office of the Police Complaint Commissioner still has a role to play on the police discipline side of reviewing these files. We would ask that you please also audit one police-involved death file, because the last time an audit was done, Mr. Josiah Wood, QC, did not examine the death file, and we thought that it was a matter of priority that was not addressed.

Finally and in closing, we can't help but note that despite the robust implementation of the Braidwood recommendations, the Frank Paul inquiry recommendations remain largely unfulfilled. The Frank Paul recommendation that has been implemented was one that overlapped with Braidwood, which was the implementation of the independent investigation office.

There are two key recommendations from that public inquiry. One is that we are supported in advocating for by police, by the health authorities. That is the implementation of civilian sobering centres to reduce the number of deaths in custody. You're going to hear a lot about Tasers and the danger presented by Tasers in capturing
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the heart, and so on.

Quite frankly, while Tasers are a serious issue in terms of the number of deaths that police are involved in, it's a rather trivial issue when you look at the number of deaths resulting from drug and alcohol overdose in police custody. Now there are five deaths per year, on our estimate, in B.C. as a result of drug and alcohol overdose in police cells. It's 28 percent of the deaths in Ontario, which is the only province we have statistics for.

We believe that these deaths cause B.C. to have a disproportionate number of police-involved deaths, one for every 16,970 people, as compared to Ontario, which is one for every 41,806 people. Those are not our statistics. Those are the RCMP statistics for 1997 to 2006.

If this committee does wish to address issues of death — although the Taser has been a very high-profile issue — and reducing death in custody, we would urge you to also take back the message that there was another public inquiry that made some recommendations about an area that's also of great concern, which is the fact that people are arrested for being drunk and high in public. They're brought to police cells, and they're dying because police do not have adequate medical training to identify when they're in distress, nor do they have the resources in the prisons to deal with the health issue of alcohol overdose or drug overdose.

Those are my comments. Again, in closing, on behalf of the BCCLA we would like to thank the province for placing restrictions on Taser use and reducing Taser use across the province in excess of 80 percent. We understand the police numbers…. We do believe that that makes a difference in reducing deaths in custody, police-involved deaths. It also makes people safer when they're interacting with the police, and it sets firm and clear standards for police officers so that they understand what our expectations are of them when they're conducting their job so they can make good decisions.

M. Coell (Chair): Thank you very much, David. Your comments are greatly appreciated. I already have a couple of questioners.

L. Krog: Thank you, and with the indulgence of the Chair…. David, I think you appreciate this very well with your legal training. The committee has a reason for existence, and I don't want to stretch it too far, but when you talked about some of the other devices that are being implemented and used, including, in particular, the one that you said captures cell phone conversations, etc., you talk about the need for an independent review. What sort of body would you see doing that? Is there any existing body that would do it?

D. Eby: Yes. We certainly think that the police services division, formerly of the Solicitor General's office, now the Ministry of Justice, is an appropriate body to do that. The concern that we have is that they are not being kept in the loop by police departments when these technologies are being purchased and introduced.

Very clear directions need to be given to police departments when you are introducing a new technology, whether it's a weapon technology, a restraint technology or a surveillance technology, that police services division has to be notified. There's definitely some concern among police that when they're introducing a new device like a conducted energy weapon or something else that there may be a tactical advantage, in terms of organized crime and so on, in keeping it secret.

Certainly, that concern can be addressed within government, but there needs to be some oversight by somebody. We're not saying that this has to be issued in a press release, but there does need to be somebody who's looking at this and saying: "Well, we understand that you could get all of the identifiers of the cell phones, but is that essential to achieving the goal that we're trying to do, and does that overstep in terms of violating the privacy rights of others?" or "We understand that you could use this CEW in place of a handgun, but how do we have to restrict its use in order to ensure the safety of the public and police officers?"

K. Corrigan (Deputy Chair): I have a few questions, but maybe I'll ask one or two and then cede the floor as well.

One of the questions that I've raised with various people, including Justice Braidwood, is a question about whether or not the decision by the province to go by way of standards as opposed to having any kind of regulatory authority was sufficient. Justice Braidwood seemed to think it was, and the police services believed that having standards gave it the force of law. I'm not an expert in the area, but that's my first question. I'm wondering if you have any comments on the fact that the implementation was by way of standards as opposed to regulation or law.

D. Eby: I think that in terms of our organizational perspective, we like the idea of a process where the public is able to scrutinize the introduction of a new policy or procedure, or so on. Regulations bring with them publication and occasionally debate in the Legislature and so on, so they have that advantage.

With respect to the particular issue of Taser use, if we had not seen a response from police as we did, which is a significant reduction in Taser use and the tightening of their own internal policies, I think I would be sitting here today telling you that that was not enough, that there was a need for regulation. But it appears that the message has gotten through to police in terms of the use of the device.
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Certainly, we've seen the RCMP actually go beyond what we understand the standard is for municipal forces in terms of when the device can be used. I think that the public pressure on that has had some influence, certainly, but I don't see any issue with it being a standard versus regulation and so on, because I understand that the Police Complaint Commissioner and/or the Commission for Public Complaints Against the RCMP could, effectively, enforce both and that the standard would equally create a standard for civil litigation and for determining whether or not an officer was protected by the Criminal Code, in terms of use of force, or not.

K. Corrigan (Deputy Chair): I also wanted to ask about the case of the 11-year-old that was tasered in 2010. That was after the recommendations had been made in the report but before full implementation by the province. I would imagine the committee that you were involved with, the implementation committee, was probably working on it at that very time.

I'm interested that your recommendation is that there should be a full moratorium for children. Do you think that is necessary, given that children have now been determined to be in that category of high risk so that additional procedures have to be in place, particularly medical procedures and precautions? Do you think that that is not enough, that it would be better to have a…? There must be times when a Taser would be indicated appropriately, or are you just saying no Tasers?

D. Eby: The concern we have is that if you provide…. In this particular case the West Vancouver police department investigated, cleared the officers, said the use of the Taser was appropriate. The child was not armed at the time. The child had a pen but did not have a knife or a gun.

The concern that we have is that if you don't provide clear standards to police, you may run into the slippery slope. So the organization had called for a moratorium on Taser use — period — in advance of testing of the device and adequate research on the device, and so on.

The Braidwood Commission exhaustively went through this research, and Commissioner Braidwood reached recommendations around the device. We're not sure…. Given the history in B.C., we're not aware of a case where a child was a physical threat in terms of a lethal threat to police officers.

We're not aware of a case where a child seriously injured a police officer or killed a police officer in advance of the introduction of the Taser. We're not aware of a major issue identified by police of senior citizens or children presenting a threat.

I want to be clear here that we're not talking about an age. We're not saying: "Well, 13 and under." We're talking about body size, and the concern is motivated by the disproportionate impact that a conducted energy weapon could have on someone that has less body mass. We just don't know. That is why we called for a moratorium in terms of these particularly vulnerable groups.

Is there a threat that's presented by them? It's not apparent to us that there is. But it is apparent the device is being deployed against these groups.

You're right. Our hope is that because that was in advance of implementation, that that was the last time a child will be tasered, but it may be of benefit to be very clear to police officers on that.

K. Corrigan (Deputy Chair): One more follow-up on that. In the case of the 11-year-old, the recommendations had been made, but the standard was not in place yet. Would it be your understanding that under the standard, the tasering of the 11-year-old would not have met the standards that are there now?

D. Eby: I don't know. I would need to review the investigative report. I know that the investigator accepted that the police officers subjectively believed that the child was armed at the time that the police officer deployed the Taser — in which case, yes, it would meet the standard. But I'm not 100 percent certain about whether or not the standard was used or evaluated at all by the investigator in that review of the police officer's action.

E. Foster: My question was basically in the same direction that Kathy was going. I have some concerns, and the concern would be equal to the concern if we went the other way and said: "Okay, whenever you've got a situation, you taser them."

Going the other way and saying that okay, we're going to have a moratorium… Whether it be on body mass or age or whatever it is, if someone that weighs 70 pounds shoots you, you're just as dead as if they weigh 170 pounds.

I appreciate the fact that the use of the Tasers has gone way down, so obviously the standards and the discussions have had a huge effect. I would be very concerned at putting a line in the sand because there are situations…. The problem with that is when you set these standards, then the policemen at the site have got to start flipping this stuff through their minds. You've got to be able to make a decision in a second and deal with it.

I think the standards that are there and that we're working with are very good. They obviously have reduced the use of the CEWs. It would suggest, then, to me that probably they were being overused. Obviously, they were being overused, because nobody has died because of it or been seriously injured because of it. Again, it's a caution. I think that before we start the slippery slope, we've got
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to be extremely careful.

D. Eby: I think this committee is right to be cautious around placing strict rules like that on police officers. I think that's an appropriate concern. What our organization is seeking to raise here with you today is that you are going to need to monitor the continued use of the CEW to make sure it doesn't creep back up — in particular, in relation to children and senior citizens.

We certainly support the idea of clear standards for police. We support the idea of a moratorium in relation to use on seniors and children. If I left here today and this committee decided that no, you're not ready to do that yet, I would understand that.

I think, largely, that all of us in the room understand that this is a situation in flux right now, that the standards have been implemented, that many RCMP officers have yet to be trained fully on the new standard, that it's a rolling implementation in training as they work people through Regina on their two-year cycle. We'll see how it goes. But I would like to make sure that this committee is alive to the issue of the increased risk presented to children and seniors.

I would also like to clarify that it's certainly not the position of this association that police officers, when faced with a gun, that we would suggest that they would respond with a conducted energy weapon — that a handgun would be an appropriate response. That's part of the use-of-force continuum.

Generally, when we're talking about the two cases that I mentioned — the senior citizen in the hospital bed and the 11-year-old — the perception was that the person had some sort of a knife, in one case a pocket knife and in one case a kitchen knife. That was the scenario where we would say: "Maybe we should use some more caution."

If a fully grown police officer who has been trained in use of force and in disarming subjects can't disarm a child or a senior citizen without using a conducted energy weapon, then maybe we should be examining their training standards. But that is beyond the reach of this committee.

E. Foster: If I could have one quick comment on that, prior to pepper spray and conducted energy weapons, that's exactly what policemen did, and they were dragged up on the carpet constantly. So they brought in the pepper spray. They brought in the conducted energy weapons. I totally agree that the CEWs were being overused. There's no question about that.

The question I would ask is: how do you disarm an 11-year-old that has a knife? You can't hit him with a billy club, obviously, if pepper spray doesn't work, if they're on drugs or if they're having kind of a mental breakdown.

D. Eby: Yes. Well, we're certainly getting beyond the area of my expertise. What I can say with respect to that is that in the United Kingdom knives have been a very common weapon for a long period of time, and police officers are able to disarm subjects with knives without handguns and, for many years, without Tasers or pepper spray. Perhaps this committee would benefit from calling in an expert on how to do that. It's not my expertise.

The suggestion that I'm making to this committee is to monitor Taser use in relation to these groups — monitor those cases, make sure that the Taser is being used appropriately and consider the possibility, if it's not, that a moratorium could in fact be implemented.

We've been in situations, or there are jurisdictions we can look to, where police officers without handguns, without Tasers or pepper spray, have been able to disarm subjects armed with knives quite successfully.

G. Hogg: Well, when the state through legislation grants authority to police to carry out actions on their behalf…. I think one of the lessons of the Braidwood Commission was that the state didn't do its job fully or wholly with respect to ensuring that there were standards in place. I think that's perhaps a slippery slope but also a delicate and difficult line.

You've made reference to new technologies and a number of usages with respect to those. Do you have some sense of how the state carries out its responsibility beyond the legislative framework that is given to police forces? It is, in a free and democratic society, perhaps the largest, strongest authority which can be granted — an independent authority — and therefore needs all of those appropriate oversights to ensure that it is appropriately protected.

With many new technologies coming in, whether or not we find ourselves to be, as representatives of the state, victims of what we became victims of with respect to Tasers, where police forces were just purchasing and utilizing with judgments of their own…. Is there a process or policy that makes sense that still gives the authority to the police to do the enormously difficult, challenging job that we provide to them and at the same time ensuring that the role of the state on behalf of the people of this province and this country is protected by way of the new technologies that are coming in?

I'm wondering about the future with those technologies in the balance and how we actually carry out our role of delegation in standards and policies and the combinations. Maybe there's a new device being introduced now that we've never heard of that may put us in the same circumstance. I'm wondering if we could have a policy that's more broadly based that provides that protection which is necessary.

D. Eby: Yes. I think the difficult question for our
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organization is that we don't know the extent of the workload. We don't know how many new devices, technologies, are being introduced by police. Certainly, there are some that we can see on the horizon in terms of less lethal weapons.

There's a device that essentially creates a burning sensation on the skin that's essentially fired like a ray. It's been developed by the U.S. Army. It's been implemented in Iraq and in military zones. The company that produces it is advocating for a civilian application of the device in terms of protests and crowd control. There are very obvious devices like that that we think are coming, but there may be a whole bunch of other ones that are not.

In terms of process, I had suggested police services division could be the gatekeeper there. You could also strike a committee not unlike this one. Certainly, the police would probably expect to have a certain level of control over the information in relation to surveillance technologies to ensure that there was some kind of protection of their information. You could strike an all-party legislative committee that could call experts and hear from experts, and elected representatives could make these decisions based on that balancing test that I was talking about in terms of the….

D. Eby: Yeah, those sorts of evaluation processes. That would be a very beneficial thing. I think that what's missing is a clear direction to police that when they are introducing these technologies, they need to come to police services division, they need to come to the Legislature, they need to come to somebody or some conglomeration of somebodies to review that to make sure that that is in the broadest public interest on both sides of the ledger.

G. Hogg: If I can interpret what you're saying, you're saying that one way of doing this might be that any new technologies that are coming forward, before police have authority to utilize those, there is some type of approval, whether it's through the Ministry of Justice or police services or….

D. Eby: That's a much more concise way of saying what I was trying to get across. Yes.

G. Hogg: So there's a specific strategy in place, and if that had been in place, then the Tasers wouldn't have come in and been applied somewhat randomly across the province. That's the problem we're fixing and building forward with a policy statement like that.

G. Hogg: It ensures — again, back to this principle — that the state, in granting that authority, has oversight and utilizes their oversight in a meaningful way.

L. Krog: I happened to listen to the CBC interview that I think you're referencing in terms of the expert from the United States who, it sounds to me, with great respect, runs an institution that maybe isn't quite as accredited as, say, Harvard University.

I guess the obvious question is: if not someone like him, where are the experts who would be able to speak to these issues in terms of giving appropriate advice and assistance?

D. Eby: Our organization is actually doing research right now to identify those experts. The surprise to us was that the Police Complaint Commissioner's office and the independent investigation office were not working with other Canadian oversight bodies to identify these experts that you could bring in — an expert from Calgary, for example, that had no connection to policing in British Columbia and had that track record that we were talking about — and, vice versa, that we could provide to Ontario or to Nova Scotia in terms of their investigations.

There is not, essentially, a pool of experts available that have been identified that meet these criteria or that could be pulled in that have no connection to the police force that they're investigating and so on or that have no financial connection to police bodies. Our organization is doing that work to identify these people. We have a couple of people in Canada. Most of them are in the United States, because of their litigious environment in relation to police conduct, generally.

It's not easy for us to do. It would be a function much better placed in the hands of the Police Complaint Commissioner, the independent investigation office, the commission for public complaints — to create a pool of experts that they have identified that meet those criteria — because they have been doing this for a long time. Surely, they have those experts, and they have standards that they evaluate experts against before retaining them. Clearly, that was not the case in the Boyd case.

L. Krog: Basically, something along the lines of the way we have a pool of independent prosecutors available to prosecute cases involving politicians.

K. Corrigan (Deputy Chair): When Justice Braidwood was here, I asked a question about lawsuits by Taser. He said that he was, in fact, sued by Taser. There were apparently other witnesses that were a little concerned about appearing because they had been sued or threatened to be sued by Taser.
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I asked Mr. Justice Braidwood whether it would be appropriate to legislate protection for witnesses to a commission. I'm wondering if you have any thoughts about that, whether that would be a good idea from your perspective.

D. Eby: The BCCLA has a position in support of legislative initiatives that limit what we call — well, it's not our name — strategic litigation against public participation, or SLAPP suits. We would certainly identify the Taser legislation as being a species of this.

It's not just public inquiries but also other individuals and groups who are threatened with litigation to restrict their participation in the public debate. It's certainly possible to address that issue through legislation, in terms of experts that you call to a particular committee or so on. Hopefully, I'm not one of them who needs it.

I think that it can place a chill on that kind of public debate. One of the most interesting models that we've seen…. We're also strong supporters of the idea that if someone is wronged, they are able to approach the court system and to sue somebody. California has a model where the case will proceed. It's not ended. If the person at the end of the case successfully demonstrates to the court that it was, in fact, a SLAPP suit, then triple costs are awarded against the party that brought the lawsuit.

In this way, the party that brings the lawsuit has the opportunity to bring their lawsuit — they're not shut down out of the gate and restricted from accessing the courts — but simultaneously there's some form of protection in that a lawyer may take on a defence for somebody who's sued in this way with the prospect of receiving triple costs at the end of the day.

It seems to be something that's working very well in California, if that's something that you were looking at. But on the specific question of inquiries, you could certainly implement something like that.

K. Corrigan (Deputy Chair): One of the areas that we've had discussion about with some of our witnesses is the reporting of incidents where Tasers have been used.

I had expressed some concern that the standard reporting form doesn't really specifically address the requirement that there be de-escalation attempts, a crisis intervention approach first — unless, of course, there's imminent danger.

I'm concerned that our ability to evaluate and analyze these incidences is probably missing something that could be there if there was a little bit more in-depth reporting. I'm wondering if that came up when you were working with the implementation committee or whether that's something that you have been concerned about.

D. Eby: The reporting system, generally, for police is one that doesn't seem to be serving either the police or the groups that seek to monitor police conduct. Our organization has concerns that we tried to do a report on police-involved deaths and deaths in custody. The best data we were able to get was out of Ontario. It was comprehensive data out of Ontario. They sent us boxes of material.

British Columbia — it was very difficult for us to get statistics. We released the statistics we did get. The RCMP said those were wrong, and they collected their own stats, which they didn't have a particular level of confidence in themselves. So it was strange to us even on the basic level of: are we monitoring how people are dying in police cells or as a result of police conduct and examining our policies and procedures in light of trends that we can identify?

It seems very basic. That's not happening. It should be the role of the coroner. It should certainly be the role of the police. It should be the role of the Police Complaint Commissioner. But it doesn't seem to be happening.

I would pull out your question to the macro level and say that before you get to the micro level of "Please check this box that says, 'I attempted to de-escalate this particular interaction,'" are we even looking at police-involved deaths across the province and saying: "How did this happen"? Police officer X or the recommendations that you would make coming out of this…. Are there trends we can identify in terms of the deaths? Could we implement something that would reduce the deaths?

As I say, on our view of the statistics, the biggest threat to people in interacting with police is not that they might get tasered or shot. It's that the police officer may not have adequate medical training to identify that they've overdosed on a drug or alcohol. Those kinds of statistics are far more compelling to our organization than a particular…. They do become boxes that just get checked as a default on a form, and that sort of macro could be a more useful statistic. Once you have the macro, then we can get down to the step by step, I think.

K. Corrigan (Deputy Chair): Noting the time, okay. I have two, so I'll quickly ask. You recommended that our audit should include one police-involved death file. I'm wondering if you could elaborate on that a little bit.

D. Eby: Yes. The Office of the Police Complaint Commissioner still maintains a supervisory role in relation to police discipline, police code of conduct reviews, even with the independent investigation office in place. That office has an important role to play, in our opinion, where somebody's conduct might not meet the criminal standard in terms of use of force but where they may have breached policy.

That policy issue is critically important. It needs to be
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overseen properly. We think it's very important that the reviews of the most serious kind of investigation done by the OPCC or overseen by the OPCC is one that is audited by your committee. Unfortunately, when Mr. Woods did his audit, he did not look at a death file, and we didn't understand why that was the case.

K. Corrigan (Deputy Chair): My final question, then. Is there anything that you felt was glaringly missing from the implementation? I mean, we agree. We believe that government has done a good job in this case. But is there something that is missing that you would have liked to have seen included?

D. Eby: With respect to the conducted energy weapon inquiry, Braidwood Inquiry, I sat on the committee that was the implementation committee, and we literally went through each recommendation and implemented each recommendation to its fullest. It was really a model for implementing public inquiry recommendations.

What is glaring to us is the difference in terms of the approach on the Frank Paul inquiry and why there was such a difference between the two.

M. Coell (Chair): Well, thank you very much, David. Your comments are very much appreciated.

C. Hall: I did bring slides if you'd rather, but I think everybody has a handout, so we can skip the AV.

M. Coell (Chair): Dr. Hall, thank you very much for returning. There were a number of questions that members didn't have an opportunity to ask the last time you were here. I understand that you wish to make a short presentation and then take questions.

C. Hall: I can. I brought a little more — a lot more, just a bit more — clarifying data. In the last presentation we largely focused around some research results, and I thought I might frame those in a little bit of a broader vision and some cautionary words and some clarifying words, if that works.

C. Hall: Of course, the challenges are large, and looking into sudden in-custody death is not a simple matter. I appreciate that the spectrum of responsibilities to this committee is specific to the implementation of the Braidwood recommendations, but I thought it might be helpful to perhaps shed a little bit more light on some of the difficulties in even the Braidwood recommendations and where they came from.

Where we left off last time, for those of you that were here…. We left off with my summary of what I'm doing, to date, in Canada in terms of exactly what you were just talking about in monitoring what happens when police use force. When does it happen, on whom does it happen, and what is the outcome?

The timing of this meeting is just a little bit early for me because we're just beginning to analyze our large cohort of data. I run a multicentre research study looking at police use of force in Canada and one centre in the U.S., and we now have about 4,200 police use-of-force events that we're going through the analysis of. I can come back to that, if desired.

Just so you know, on top of that I'm also working on several other projects. One is a case-by-case analysis of all 31 Taser-related deaths in Canada. There are currently 31 since 1999. Also, we've developed a way to do blood work in agitated, incoherent people. We've just published that data at a meeting, and we have yet to roll that into a pre-hospital protocol.

Lastly, we just got word two or three weeks ago now that we've been successful — myself and some U.S. collaborators — on a National Institute of Justice study to look at blood work in agitated persons, comparing one group to another, and that's no small undertaking. It's kind of exciting.

As a note of interest in the last bit that I heard, when we set out to study police use of force, one of the very tragic moments in my putting forth of that proposal was the specific disallowing of studying outcomes in children. There's a large perception in the research community and by hospital ethics boards and university ethics boards that research in and around children is very specific and is governed by even tighter guidelines than the work that I do, which is in subjects of police interest.

When we put our protocols forth, universally we were disallowed from collecting data on individuals under the age of 18, and when we receive records around them, we have to parse them from our database. So I have no information for you about children, nor, interestingly, for lack of a better descriptor, repeat offenders.

Because we have to strike the names of all persons from our database, even though we know that people that the police encounter over and over and over again clearly are at higher risk than others, I specifically was disallowed by ethics committees from collecting that information because of protection-of-privacy legislation. We'll talk a little bit about the difficulties as we go on.
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C. Hall: All right, as we move forward, just a little bit of a reminder. Every single method of restraint historically has been implicated in sudden in-custody death.

If you go back to the '70s, it was the nightstick or the lateral vascular neck restraint, otherwise badly named as the chokehold. In the '80s it was largely attributed to multiple-officer restraint, and the concept of positional asphyxia in law enforcement context was born then subsequently refuted. In the '90s for about six months we were very enthralled with pepper spray and its ability to induce subject death. And of course, in the millennia, the conducted energy weapon came along, and that's our current focus.

I think what's important for you to know from where I sit is that I really don't care what it is. I just want to know what it is. So our study is not a Taser study. Taser is a modicum of what I do — a teeny, tiny little piece of it; bigger in some agencies, smaller in others.

I thought I'd give you an example. Admittedly — this is called bias — it's a glaring example of the parallels between cases. Recently in Victoria there was a sudden in-custody death. It was 2008. A young fellow who was a cocaine addict was purchasing cocaine from his dealer regularly. You know you're in trouble when your dealer tells you: "I'm not going to sell you this anymore; you get too crazy." This is from his dealer, witnessed by his girlfriend.

On the day in question he used cocaine, as was his habit, and he and his girlfriend drove down into South Oak Bay near Oak Bay Marina. He had decided that he wanted to go for a swim, and he was hot and really wanted to get some fresh air.

When they arrived there, he became acutely paranoid. He leapt out of the car, screaming that he was going to be killed. His girlfriend actually followed him along in the car as he ran from the Oak Bay Marina up towards St. Charles Street. This is not a runner. This is not what he does, and he's high on cocaine at the time. She followed him along with him screaming at her the whole time, "They're going to get me; they're going to get me," and words to that effect.

When he arrived near St. Charles Street, he began banging on doors and ringing doorbells, screaming for help. "Help me. Help me. They're going to kill me." Multiple 911 calls, of course, ensued, and two Victoria police officers turned up at the scene — both skilled, both large men, both seasoned law enforcement officers. They decided that a simple armbar takedown is what they would do, which is what they did. They put him on the ground, applied the handcuffs, and he had a cardiopulmonary arrest. He was not resuscitatable, and the question the next day was: how often was he tasered? He wasn't tasered. He had a sudden in-custody death just like the other ones that we see.

However, in B.C. there have been eight, now, sudden deaths following or, what we say in medicine, proximal to conducted energy weapon deployment in British Columbia. One of those deaths I'll just recount to you for its…. Well, I'll just tell you the story.

This was the case of a 49-year-old native Canadian male who was in a semi-urban community in B.C. who robbed a bank. He'd already been in prison before, was out for whatever reason I don't know, and he robbed a bank. When he took the money, the dye pack exploded all over him. His getaway driver drove him home, because that's where they lived, and he went into the shower and started to try to shower the dye pack off. His girlfriend noted that there were police cars pulling up around their apartment — I think it was an apartment; it might have been a house — because a bystander had followed him from the bank and had called into the police where he was going.

He looked out the window, ran to the kitchen, stabbed himself in the chest twice, at least, and then dove out the second-storey window in an attempt to kill himself because he didn't want to go back to prison.

Law enforcement officers were there. He lay on the ground initially and then got up and started to run, so a Taser was deployed. On the first deployment, one probe struck him the back. It's unclear where the second probe went. During the course of applying handcuffs, the second deployment was carried out. No information on the nature of that deployment.

He was bleeding to death. EMS was called, and he died of hemorrhagic shock. That's one of Canada's 31 Taser-related deaths, thus the confusion.

To me as a health care practitioner, it's pretty obvious that Taser did not cause that death and that that case need not be included in the list of Taser-related deaths. However, we'll include it in our study and look at it. But this is where some of the difficulty lies, where obviously irrelevant cases are included as a mounting denominator when really, when you review the cases…. There are other cases very similar to that in Canada.

So back to the other cases in British Columbia, and we'll restrict it to British Columbia at the moment. There are eight cases in B.C. — the case I just mentioned to you of the self-stabbing, and then there are seven other cases. Six of those, on autopsy, have illicit drugs determined at varying levels. Three of those deaths in British Columbia,
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were drive-stun applications only, or what's now commonly known as contact stun.

There is no medical discussion whatsoever currently about the nature of drive-stun applications. There is not an evolving base of literature. No one has cardiac concerns about drive-stun applications. Animal studies — and we'll come to why it's animal studies — have been convincing in their lack of concern about drive-stun applications.

Four of the remaining cases were probe mode. One certainly had probe modes described, deployed to the chest, and that young man continued to fight with officers for several minutes following that deployment and threw a couple of officers across a room. He died some time after that.

Another one was a combination of drive-stun and a probe mode deployment, and the collapse happened more than five minutes after the last application.

Thirdly, there was an individual where a probe mode Taser was deployed. One probe stuck in the jacket — clearly was not an effective probe mode deployment — transported to hospital, had a cardiopulmonary arrest in the hospital after being conversant during the trip to hospital.

Lastly, the one we all know, which is drive-stuns to the rear shoulder, probes potentially to the chest, almost no useful information about where the probes were and a pretty immediate cardiac arrest.

Those are B.C.'s eight cases. For me as a medical researcher, what's really important is how do those fit in all of the deployments known, and how do those fit on their own. What we're doing is analyzing those cases against a control of other individuals who have been tasered. It's been a year collecting case files. It requires an inordinate amount of time and effort to do that, as you've heard.

The table I've included you can actually kind of skip. Some people like data in tabular form, and some people like it in paragraphs, so I have it both ways for you. The table is just the list of inquested deaths in B.C. starting in 2010. Actually, I have a list from 2012 of police-related inquested deaths in B.C., but the schedule, of course, lags behind. What's important is in the paragraph form, just to let you know that context to me is profoundly important.

In 2006 to 2010, that four-year interval, the inquested deaths of interest — I'm just talking about police-related activity here — there were 18 sudden in-custody deaths or unexpected deaths in custody. We're not talking about deaths in cells in long-term penal institutions. I'm talking about deaths on sidewalks, for lack of a better way to put it.

Three of those were conducted energy weapon–related, one of which was the case that I talked about involving the diving out the window. To me that's compelling. There are 18 deaths, three of which are Taser-related, one of which has clearly got nothing to do with Tasers. So now we're down to two, and the weight of that becomes less worrisome. It's still a worry. I'm not, not worried, but the magnitude is a little easier to comprehend.

I've given you a list. There are three inquests around police-related activity in 2010, nine in 2009, six in 2008, four in 2007 and a little less in 2006. But I want you to notice that Diffner in Surrey was agitated, incoherent, excited — delirium features. Gill — excited delirium, no conduction of the energy weapon. Welton, Duncan RCMP, psychiatric complaints and shot, and four more gunshot wounds, etc.

The big deal is context and then how you interpret the research around that context is where we're going next. The 31 Canadian deaths…. Of course I didn't think to put pages numbers on my PDF. We're behind the 2006 inquests. I spent a lot of my weekend doing this, in between trauma call.

In Canada there have been 31 deaths in total. Not all have been inquested, and it's important to note that the inquest usually occurs approximately two years after the death, give or take. That's a pretty standard time frame. We're researching those deaths, as I discussed, and I don't have data for you because we're not finished yet.

Importantly about researching conducted energy weapon is that I can't, in the 20 minutes that we have here this morning, go through for you a comprehensive review of the literature around conducted energy weapons. But I'll draw a little parallel for you to what's happened. I agree that implementation in Canada didn't follow a plan that I would have followed.

The flip side of that is police agencies prior to, probably, Braidwood did not follow evidence-based practice. It's not what happened. You needed a new vest; you bought a new vest. You needed a new baton; you got a new baton. You needed a light bar; you picked the one you liked.

Perhaps we didn't realize that the public fear of electricity would be so high — because we all know, since we were two, not to stick a fork in an outlet — and that when someone died after an electricity-related event, the public's fear would become rampant, fueled in no small part by lots of what we call publication bias, where you hear the same case a thousand times.

The background, however, is that the way that CEWs have evolved does follow kind of what we do in pharmaceutical research. In other words, initial electricity studies were done by the manufacturer, like pharmacokinetics by the drug manufacturer. Animal studies are undertaken to look at effect and deleterious effect — same in drug manufacturers — and then there are human volunteer studies, which certainly there have been lots of in terms of conducted energy weapons.

Now we're at the point where there's a field trial, or a cohort study in the population of interest. The difference is that happened without anyone monitoring it. In drug studies you have small field trials where you see
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how it responds in a population. However, cohort studies are emerging.

Bill Bozeman is one of the researchers in the U.S. who does cohort studies. He is not industry-funded. It's important that you know that. We're going to talk about that a tiny bit. He gets funding from the National Institute of Justice to look at the effect on a cohort, and we'll tell you the result of that in a minute. Of course, we're doing a study that's funded by DRDC, through the Canadian Police Research Centre.

Importantly for this committee, like the previous discussion, new devices, new waveforms…. Do they get to rest on the research that's gone by? Depends on what the biomedical experts would tell you. Is that waveform so different that we could expect a different result, for example, like new models, the new X2? What about the ballistic round, the XREP? What about the X3, the new three-pronged? Do they get to rest on the research if the waveform is different and the effect is different? I would challenge: maybe not.

When you look at methodology…. Don't worry. I’m not going to give you a stats lecture, tempting as it is. It would put everyone to sleep in four minutes or less. You must weigh the evidence. This is the challenge not just for you but for police agencies, whose administrators by and large are not epidemiologic experts or statistical mavens or even really that interested in being so. You need to look at study design, and biases and so on. The challenge is that one must interpret research with a very jaded eye and be careful not to make research say what it does not. That is so easy to do.

There was a recent Times Colonist article about breast cancer and surgical access for Island women that was vastly misinterpreted and became that Island women were getting poor surgical care, when in fact that report said nothing about that.

As an example, I give you this paper from circulation, mainly because in reading some of the publication around this hearing, the committee heard that the actual human resistance to a Taser had been misrepresented to be 650 ohms or something like that, when really it might only be 25.

I went and looked up a little…. I don't know if it's the same paper, but just to give you an idea of the challenge, this paper's from way back in 1981 when we were learning how to defibrillate people better. Intensive care units were born in the '60s. I was around in the '60s; I don't know about you. In 1981, when I was working in intensive care, we still had monitors you had to warm up for a little while there. Anyway, these authors set out to study transthoracic resistance around defibrillation. What that means is that we use big sticky pads. So we were just going away from the paddles and into these stick-on things.

They were looking at resistance with eight-centimetre versus 13-centimetre pads, so half the size of this piece of paper; stuck anterior, posterior, bracketing the heart; with a defibrillator current between 90 joules and 450 joules, to determine which pad had the least resistance and delivered the charge appropriately.

That is entirely dissimilar from Taser waveform deployment through a pinpoint probe in the subcutaneous tissue. It's dangerously tempting to extrapolate one to the other and say, "Well, this says it's only 25," and they told you it was 600. Caution, much caution. You really have to know what…. Now, is there evidence? I don't know. I'm not the biomedical person. There are lots of those around.

One of the restrictions that you're going to face in trying to evaluate the literature around safety is: how do you get a study done? It is very difficult. If there is no hospital angle, no care, no medical intervention planned, institutional review boards from hospital universities don't want to hear about it. It's not what they do. It's not their job.

Police agencies may not go to an institutional review board and say: "We want to study use of force." It doesn't matter. But you can't publish anything in the medical literature without that review. There is a dichotomy there. You have to have a medical angle.

For example, we're applying for funding to expand my study when my grant runs out right after my time runs out in March, and when we wanted to go to a national use-of-force database to just look at policing outcomes — because, trust me, tracking the medical stuff is a bear — the hospital review board said: "Don't bring it to us, then, because we have no auspice over that finding."

The other thing to know is that it takes a really long time to document rare outcomes. I've been working in my work for six years now, and we have one sudden in-custody death in our cohort — six years, millions of police-public interactions. So you need funding agencies to give you a truckload of money to do exhaustive counting for years to find…. Everybody's saying: "Well, where are your results?" Well, we're not ready yet. "How can you not be ready? It's been six years." It takes a long time.

To get untethered funding…. There is very much criticism about industry-sponsored funding, and I'm mindful of that. I don't have a buck from TI on purpose, because it allows me to say that I don't have that. To give you an example, 31 men have died in Canada following Taser deployment at some level, whether it's related or unrelated. There have been a quarter of a million men diagnosed with prostate cancer this year. I'm competing for that funding. It's not the same group, but funding goes to where….

We're talking about a marginalized population, by and large. Prior to ten years ago, physicians didn't have any concern about a guy who died in a police car. We never saw them. It was a pathologist's problem.

I'm going to skip a little bit over conflict of interest, save to say that when someone declares their conflict, it's there so that you can interpret the results. It doesn't nulli-
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fy results. I'm not defending industry-funded research to the end, but we need to know that conflicts exist on both sides of the argument. People present to you that which they want you to know and leave out the rest. Everybody does it. It would be the same for me. But it's important that we weigh where people come from.

For example, the human volunteer study on echocardiac evaluation of the X26. This was a new version of the X26. Don Dawes and Jeff Ho have openly published that they have accepted research moneys from Taser International to do the work. This particular paper found that this device was rejected, for example — published. In the old days, you couldn't even get that published.

Population-based studies are emerging. I'll summarize. You can skip to the very end. Bill Bozeman did an evaluation of 1,200 field deployments of conducted energy weapons and found that over 99 percent of subjects had no or minor injury. There were three deaths in that cohort, mostly from falls from a height.

Lastly, just to make you completely confused, to look at outcomes in terms of cardiac rhythm…. I apologize for the crazy fonts. I think it was about 2 a.m. yesterday when I did this one. Chuck Swerdlow, who I don't know, and Dhanunjaya Lakkireddy published the top paper. The bottom one has the Circulation paper on it.

The top paper was from 2008, Academic Emergency Medicine. Swerdlow and Lakkireddy are Taser-affiliated researchers. They published this series of seven cases of immediate collapse and, in the body of that paper, documented that one of those cases was the first reported case of Taser- or conducted energy weapon–associated v-fib. These are Taser-friendly researchers who have published that. That's important. They didn't bury that.

The next paper is the current one, which is 2012, Circulation, by Dr. Douglas Zipes. I've put at the bottom of the little picture of the paper the disclaimer from Dr. Zipes. This is the paper that everyone's talking about right now.

This is a case series, but you need to read the conflict-of-interest disclosure, which basically tells you that these eight cases come from Dr. Zipes's testimony and involvement as plaintiff's expert. So these are what we call selected cases sought out for their negativity, compiled as a case series and published in a very large journal.

Importantly, when I review this paper — and I have, and will be discussing this at a meeting next month — it's a case series of eight deaths where Dr. Zipes served as plaintiff's expert against the manufacturer. There is no information in that paper about actual dart location, save to say that one or both darts were on the anterior chest. Eight cases — really? You couldn't include that? It just makes the one eyebrow go up a little, and you think: "If one dart was on the chest but the other one missed, is that still a relevant case?" I don't know. We'll ask Dr. Zipes in person.

The ECG rhythm strips have various amounts of concern, and one of those was recorded 30 minutes after the person collapsed. Their relevance to the actual presenting rhythm at that point would be suspect at best. Scientifically, however, this generates the hypothesis, as a physician, that it can do it, and we have to test it. That's why in 2008 we added dart location to our study, so that we could track that. It's important that agencies track dart location so that you can know how many people live or how many people die with different dart configurations, so that you can understand the relative risk.

Misinterpretation of data is huge. It's important to note that Zipes, these two little snippets at the bottom of "Methodology issues." In one Dr. Zipes himself says that you must understand that ECD — or electronic-control-device — applications without one or both darts to the chest "would not be expected to influence cardiac rhythm." That's important. That's from the author of the case series.

Then he go on to say — which I find staggering, but anyway — that considering the fact that sympathetic stimulation happens in most of these use-of-force events, "it seems more logical to conclude that the ECD, rather than sympathetic stimulation" caused the deaths. That's only true if you ignore all deaths where no ECD was used. When you do that, we call that confounding, where you're looking at one thing and ignoring the rest — inadvertently, very often.

I don't have a lot more data for you from our study about injury outcomes. We're looking at that. We're just beginning that now. I did run the numbers last night on verbal de-escalation, because we asked that in our study — there were six Canadian agencies in our study — and that varies from 70 percent who record that they tried verbal de-escalation, right up to 90.

What we've learned in our study by giving officers check boxes is that giving an officer a check box does not compel them to find that. We found that in our excited delirium features. We see that in verbal de-escalation. While it's policy, it doesn't always happen, and in fact they're not checking it off 100 percent of the time. Can I tell you how often they just check it off because it's there? No, I can't.

Interestingly, in hospital transport — we just ran this for another reason — we found that about 20 percent of individuals who have police use of force come to hospital at the end of that event. When we looked at our data, we found that the vast majority of individuals who were transported to hospital were transported for a psych assessment or because of intoxication. The vast minority were for injuries.

Interestingly, when officers assessed the individual as having an emotional disturbance, they went to hospital by police car. If you had an injury of any type, you went to hospital by ambulance. Police agencies are sort of serv-
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ing as the de facto mental health ambulance, if you will. There are lots of operational reasons for that.

So what now? Always find the "what now" part. Ignore all the text. I just put it there so you'd know what I was thinking. I think this adversarial stance that is emerging in Canada is counterproductive. We all should be working together to find out what predicts sudden in-custody death and how we can prevent it.

Our civil liberties agencies have access to information that I can't get as a medical researcher. They can do a freedom-of-information request and gain virtually almost anything from the file. I'm bogged down for 11 months in an ethics review board and then declined from following children or the elderly. Well, we can follow the elderly.

There is no question — I agree completely — that we must continue to do population-based work. We need to find out what happens to people after police use of force, including with traditional measures. If you don't think a baton is injurious, it's huge — huge. The injuries that we see are often baton-related.

I think we need to learn, and we are trying to learn, from the Taser experience to develop exactly what you were just talking about as new modalities. There are lots of them coming along for police agencies to look at and to consider. How do you assist police agencies — not govern them, but assist them — in understanding what the real risks are? How are we going to implement this? How do we follow it?

There's no national coordination. The Sol. Gen's offices are all independent. The ministerial offices are all independent. The CACP does not have a governance mandate. There is no agency that unites police agencies. Everybody is doing their own work, and how data is collected is vastly different.

Alberta, for example, has started to do the AI3 initiative to track police use of force in a standardized way, yet agencies are opting out and are allowed to opt out. That's crazy. You have to collect the same data.

M. Coell (Chair): Thank you very much, Dr. Hall. We appreciate your comments. I guess that at the last opportunity you had before us there were a lot of questions. You promised to come back, and you did, and thank you very much for that.

K. Corrigan (Deputy Chair): I do. I have lots of questions, but I'll just start with…. You were talking most recently, towards the end there, about de-escalation and the reporting. I've had a particular interest in that. But the reporting form that we have seen doesn't really refer to de-escalation. It says, "Did you have communication?" not "Did you de-escalate?" — do the things that are recommended by the Braidwood Inquiry.

I'm wondering how it is. What are you doing in order to get that information? Are you going behind the stats and going back and trying to recreate…? You're just using what you can get.

C. Hall: What's important is…. The research study is completely different than what police services does. In greater Victoria all four police agencies, for example, participate in my study, which means they have to do my form too.

My form is distinctly different from the police services form, for a variety of reasons. We, for example, have specifically spelled out that which we are interested in: "Verbal de-escalation attempted? Yes, no, unknown — I can't remember. Did I do it? I don't know" or whatever.

On our form we spell out specific interests that we have — nature of the call, features of the subject, features of the use of force, including verbal de-escalation — and they check it off, or they don't. In our work, if you have a blank, it comes back to you because you have to say either "yes," "no" or "I can't remember" or "I don't know," because in statistics you cannot infer that a blank is a no. That's terribly methodologically corrupt. We have a single-page, one-sided form that has everything in tick boxes. Analyzing text is hideous. It's very difficult to do, and what officers tend to do is, you know, minimize the whole thing.

I mean, you're trying to type it up, you've got 20 calls on the screen, and it's: "I approached the subject and used ground control tactics. Thank you very much." I'm paraphrasing terribly.

We added verbal de-escalation when it became apparent that that was important for us to look at — how often that occurred. What we'll do is run the data using that as one of our co-variables to see if and when. But when I was here last…. It's important to note that verbal de-escalation is not always appropriate. Also, when we're talking about the highly agitated, intoxicated subject, you might well be doing it knowing full well it's not going to do anything. But yes, we follow that, along with lots of other variables.

K. Corrigan (Deputy Chair): Tell me when your study started. You're not looking retrospectively. You are looking now at cases of use of force that are coming into how many different sites?

C. Hall: To six cities, and that's nine police agencies — because greater Victoria has lots of police agencies, like lots of mayors.

What we do, if you've ever read a hospital chart…. Retrospective studies, where you start with an outcome and look back to see what happened, are fraught with something called measurement and recording bias. In other words, you're looking for something that…. Just because it wasn't written down doesn't mean it didn't
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happen.

Let's take an example. I'm trying to think of a good example. If someone had a cardiac arrest because of septic shock in the hospital, was it because the triage nurse didn't flag the patient as a septic shock patient? The answer is that if there's not a place to write that down consistently, it'll be highly variable. Just like physicians, police officers write varying degrees, and its legibility is suspect.

When I set out to do this work a really long time ago now I realized, because I'm an epidemiologist, that the long, slow, expensive way to do it was the best way to do it, which is to start with all comers, define when you're going to start to collect data and collect it — all that you're interested in. You can't collect a snowstorm of data and hope for the best. That's called cheating. You have to have defined research questions and develop your variables that you're interested in to look at those research questions. You can't answer every question, for example.

We did it. That's what prospective means. It's consecutive. All use of force. It's not a Monday-Friday when there's a research assistant sitting in the police car, for example. That doesn't work, because you'll miss all the after-hours and all the…. It's all police officers regardless of whether you're plainclothes, whether you're….

We don't collect data, by the way, on special teams. So SWAT deployments — categorically different than general duty policing. That's not my area of interest. We look at all general duty police officers.

The ideal way to do that, and we're just struggling with this right now, is electronically in the police car. One of our centres is the city of Calgary. Their use-of-force report form includes all of my items buried in their use-of-force report form. The officers have to fill it in. They can't go past a screen and leave it blank. Electronically, if they don't put "yes," "no" or "unknown," they can't get past it, which makes compliance really good. So that's how we do it.

You can't give people volumes of data — nine, ten pages. Physicians — we know that compliance with a single page is about 85 percent. If you flip the page, it drops to about 30 percent. It's just too much. So we're working on this.

In Canada the other issue, of course, is that different police agencies use different electronic platforms, and different police agencies define "use of force" differently, as do different ministries. You have to compare apples to apples. Fun, huh?

K. Corrigan (Deputy Chair): So at this point I know you can't in any way say what your study is going to find. But can you tell me what your study is going to find? Where are you with it now? What are your sort of general…?

C. Hall: Thank you for that. I would, if we had done it yet. But things we have done….

The first thing to know is that police use of force is extraordinarily rare. In our flagship agency in this study police use of force consistent across three years was less than 0.1 percent of police-public interactions, which means 99.93 percent of the time in that agency police, face to face with a member of the public, did not use force.

That's huge. If you're talking about verbal de-escalation…. I don't what the benchmark is, but in medicine we have a 70 percent standard, just so you know. So 70 percent is considered very good for us.

That's the first thing to know. The next thing we've learned already that's remaining consistent as we audit the data weekly is that when the police use force, individuals are profoundly — I love that word, apparently — abnormal most of the time, like 85, 86 percent of the time. You start with police and a member of the public in the same room, and it deteriorates, if you will, to a use-of-force event. Or maybe it starts that way. That is with an abnormally behaving individual 86 percent of the time.

We ask officers at the scene to record whether they think the person was drunk, high or drugged, or having an emotional disturbance, or any combination. They can check off as many boxes as they like. And isolated emotional disturbance, judged by police officers, 9 percent. We're looking at the correlation for hospital outcomes later.

Only 9 percent. Remarkably similar between agencies. Exactly the number that Vancouver published in their mental health report a few years ago — 9 percent of police-public interaction with isolated emotional disturbance. That's probably where your crisis intervention training is going to have the big bang, but it's 9 percent of less than 1 percent, if you know what I mean.

With all due respect to everyone who's testified that I haven't heard, when you are interacting with a highly abnormal, cocaine-intoxicated, agitated, crazed individual, it's not time for talking. It's not. You can try it. We always advocate talking with people and reiterating what the plan is, but if you've never seen anyone in that state, it's amazing.

One of my very first cases in Victoria in emergency medicine here, when I moved from Calgary…. I thought: "Oh, it's Victoria. It's pretty quiet. It's pretty nice." A 240-pound, steroid-using bodybuilder who's bipolar was high on cocaine in my department at the Jubilee. We five-point-restrained him to the stretcher, and that includes someone sandbagging to hold his head. He stood up with the stretcher on his back, and he started crashing around in our department. My solution to that, being a farm girl, was to knock the stretcher over. It worked.

And then what do we do in the hospital? We chemically sedate people. The notion that hospitals don't physically restrain people is incorrect. We do it daily. We use chemical sedation when we can't control an individual physic-
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ally because we know that long-term physical control is going to be deleterious.

Police officers will never sedate people in the field. We can talk about that — hijacking. See, here I go. It's an on button, and it doesn't come off.

That's what we're learning from the study — that it's hugely abnormal individuals. We know that sudden in-custody death is so rare. We know that of the people who are abnormal, there's a measurable percentage of those who are in this wildly agitated, incoherent, superhuman-strong, resistant-to-pain, hot, sweaty…. Those people — you can measure how often that occurs. And if we allow police officers to tell us that, then we can measure the risk.

G. Hogg: You made the statement that the responsibility — I don't whether it was your responsibility, the medical community, or responsibility of the state — was to assist police, not to govern them. It was within the context of new technologies. Can you help me understand what you meant by that?

C. Hall: Yeah. "Governs" is probably the wrong word. I meant that if we don't engage police agencies in the discussion around new technology and use their expertise on what are the operational implications of this, laypersons, including myself, don't understand well the police use of force and the police environment. If we were to make those decisions in isolation from them, we will be wrong.

I can give you an example of that, if you can stand it. We were talking with a group of cardiologists about conducted energy weapon deployments. One of the cardiologists said: "You know what you need? You need a Taser that can do an ECG." I said: "Okay, do tell." He said: "What'll happen…. The probes are deployed. You get some feedback, and it's a red light, green light — not too bradycardic or no signs of instability." And I said: "Wow. There's only one problem with that. How long does that take?"

So it's that operational sense that enables police to say: "That's great, guys, but that's not what we do." That's what I meant.

G. Hogg: Okay. My sense, when you talk about governing, was going back to the role of the state in terms of ensuring there are some standards that are applied. I don't think you're saying that. I think you're saying that the co-creation of policy development needs to engage the end users.

C. Hall: That's exactly what I mean. That's why you're there, and I'm down here.

K. Corrigan (Deputy Chair): I guess I'm asking you to speculate or maybe talk about possible outcomes. Are you suggesting that in the case of Tasers where there have been in-custody deaths it is possible that the death would have occurred anyways without the Taser? Or can you determine that?

C. Hall: It's a great way to put it. I'm glad you did, because this comes up all the time. People say: "Oh, they're dying anyway; it doesn't matter what you do." It's not what I believe, in the medical context.

What I mean is that the causal relationship is not as strong, likely, as we are led to believe. In other words, there are cases, as the Swerdlow case, where a Taser deployment happened — two darts to the chest bracketing the heart, individual drops and has defib — that have been documented. We'll see what happens with the Zipes paper and what the quality of that data is.

In the 31 Canadian cases — let's stick to those — that we're in the process of reviewing, there are multiple cases within that context where it's clear physiologically the Taser had nothing to do with it. A Taser was used during the event, but it wasn't the causal moment either temporally or…. Temporally is the easiest thing.

For example, the case that I talked to you about…. There's a very similar case in Ontario of an individual who stabbed himself and was tasered to stop him doing that, and he died of the self-stabbing. That's not Taser-caused death. Taser was in the vicinity and was used, but it isn't the causal moment or even, you could argue in that case, contributory.

What I mean by that is when you look at sudden in-custody death on the whole, in Canada, let's say…. And the previous witness was correct. I said this the last time I was here. There is no sudden in-custody death registry in Canada, in North America — in fact, in the U.K. either. That makes it very difficult to look at the deaths. If you only restrict yourself to the death, that's a start. We want to look at the lives as well.

If you look at sudden in-custody death on the whole, what is compelling as a physician and a researcher is you can take out the names, the dates and the modalities, and the case reads the same. So the same people that died of positional asphyxia are the people who died after pepper spray, are the people who are dying with and without Taser in some circumstances.

Are there circumstances that we're trying to understand where Taser represents a real and specific risk? I think there may be, but I can't prove it to you yet. This is where population-based studies that include where were the darts…. So if someone has two darts paired to the chest and lives and someone else has two darts paired to the chest and dies, then we can understand risk and proximity and all of those things.

J. Trasolini: First of all, thank you for the fascinating information that you're presenting to us. I'd be very interested when you get the final results of your work.

The question that I have is in light of your information about the rarity of incidents of police custody. The one example that you gave us was where this individual had stabbed himself in the chest a couple of times, and he somehow found himself running away, and then he was tasered. Perhaps this is not a question for you when there could be other mitigating circumstances, but why would police use a Taser on a subject that was running away and was bleeding or whatever?

C. Hall: It's a great question. I've parsed that heavily. The answer is that it depends. Use of force is dictated, as I understand it…. I'm no use-of-force expert, but it's the subject, characteristics and the overwhelming nature of the situation that determine when police use of force occurs. In this case, I don't know where the knife was. I don't know if they thought he was armed. I don't know if he used a weapon to hold up the bank.

Police officers are not medically trained. If a person has just dived through a second-storey window and is covered in dye from a bank robbery, I don't know the details of the case. I've parsed them heavily for this event. So the answer is that as we go through this research, one of the really important points is that a medical assessment of police use of force can never document the appropriateness of the use of that force.

Similarly, lack of injury does not mean appropriate use of force. Devastating injury does not mean inappropriate use of force. Those decisions have to be made at the operational level. Physicians are really…. We have no education. I've learned a lot, but emergency room physicians have no training in police use of force and what that means unless they're also police officers.

C. Hall: I have a research contract with DRDC, Defence Research and Development Canada, so it's a federal grant. It's not a grant; it's a contract. I'm reminded of that frequently. It's unrestricted, meaning we publish our results regardless of our findings, and we're free to publish whatever comes from that.

Just so you know, it has taken three-quarters of a million dollars to do six years of consecutive work in six agencies plus an American agency. That's with some money from the NIJ to sponsor the American agency. It takes a long time crafting databases. I work for free a day a week.

M. Coell (Chair): Dr. Hall, thank you very much for returning for a second time to be a witness before this committee. It has been greatly appreciated.

M. Coell (Chair): If members could just stay behind for moment, we need to adjust our schedules for meetings in the next six weeks. I have some suggestions for you.

S. Sourial (Committee Clerk): Sure. Members will have in their package a letter from the Council of Canadian Academies. I believe this organization was referenced by Robert Gordon, one of the witnesses we've invited to appear. I believe he feels that they could answer our questions.

They're working with the Canadian Academy of Health Sciences in another research funded by Defence Research and Development Canada regarding the scientific knowledge regarding the medical and physiological impacts of conducted energy weapons. They're based in Ottawa, so the thought was to have them appear by either conference call or video conference. That's one group.

The Ministry of Justice's ADM Pecknold would like to speak to the audit before the Auditor tables his report. It's to set the context for the work that they do.

Members had also expressed an interest in inviting Mr. Kash Heed to appear before the committee.

Those are three that we're looking at related to the committee's work. We were thinking to have those three scheduled November 5. There would be no meeting next week, so we'll schedule them Monday, November 5.

We have the hearings already in Vancouver on November 19, and we're still waiting to hear back from expert witnesses and stakeholders for those. At the moment no one has confirmed for the 19th.

Then the Auditor…. Their report will not be ready until November 16. The Police Complaint Commissioner would like to speak to the report as well. Again, in discussion with the Chair, we're thinking of perhaps on November 26 having the Auditor and Police Complaint Commissioner appear.

We're looking at three dates — November 5, November 19 in Vancouver and November 26 — if members are available, here. November 5 and November 26 would be here, and November 19 in Vancouver.

We'll continue to follow up with the witnesses that we have invited to appear, to see if they are available on the 19th. The 19th is also in case any members of the public…. We extended the deadline to November 23 to see if any members of the public are interested in appearing.

M. Coell (Chair): We would still keep the third of
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December and the fourth of December for sort of a wrap-up and discussion of how we want the report to be developed.

We need to have the inquiry completed by the end of the year, but the report we can table sometime probably in February. That would be the best possible outcome, I would think. That frees up some dates for members as well.

Does that suit everyone's schedules? It does free up a bit of time. I know the Finance Committee is meeting during two of those days, so that will help.

L. Krog: To be clear, we're looking at the fifth, the 19th and the 26th of November. Those are the only dates in November.

S. Sourial (Committee Clerk): I still have to confirm with the Auditor General's office and Ministry of Justice, although Ministry of Justice was anticipating to come early November. I have not spoken with Mr. Heed yet. I have left messages. We've gone back and forth. Nor have I spoken with the Council of Canadian Academies yet. There are a few presumptions there that they will be available.

M. Coell (Chair): We would send out a confirmation of those in the next couple of days, but those will be soon.

K. Corrigan (Deputy Chair): A couple of things. One of the recommendations that was made by David Eby was to audit one police-involved death file. It's something that we kind of talked about. I don't think it is in the workplan for the Auditor General now — is it? — but we talked about it. I'm not sure where we ended up with that.

M. Coell (Chair): I mentioned to Susan — she's going to follow up — that it was going to be a random process. Whether the likelihood of that's in the random process…. It's something we can bring up to the Auditor and just see what his comments are.

K. Corrigan (Deputy Chair): Yeah, I think it would be worthwhile talking about that. Even if it's an add-on, it might be worthwhile.

The other thing is that I wanted to check…. There was going to be a letter going out to the Union of B.C. Indian Chiefs — correct? Has that happened yet?

S. Sourial (Committee Clerk): We've sent out…. I think we followed up on last week all the….

K. Corrigan (Deputy Chair): All of the various — Union of B.C. Indian Chiefs, and so on.

S. Sourial (Committee Clerk): Yes, and aboriginal friendship centres and various other groups that the committee wanted to follow up on.

M. Coell (Chair): Those could be scheduled in on some of those days as well. I think we've got time to do that.

G. Hogg: I just received an e-mail, while we were sitting here, from Rob Gordon, which I think Kate hasn't sent to you. Rob's at Simon Fraser in the criminology department.

Rob did say in his e-mail that he felt that he didn't want to duplicate what might be coming from the organization. But he also makes reference in his e-mail, which I copied to you as well, Kathy, that he's been in Australia. He's got some comments that he makes in there that the Braidwood Commission is being seen as the standard all over the world. He might be interesting to have come before us, as well as the organization that he's representing with the academics.

S. Sourial (Committee Clerk): We're eliminating next week, the 29th and 30th, November 13th….

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Chair:	* Murray Coell (Saanich North and the Islands BC Liberal)
Deputy Chair:	* Kathy Corrigan (Burnaby–Deer Lake NDP)
Members:	* Eric Foster (Vernon-Monashee BC Liberal)
	* Gordon Hogg (Surrey–White Rock BC Liberal)
	* Leonard Krog (Nanaimo NDP)
	* John Slater (Boundary-Similkameen BC Liberal)
	* Joe Trasolini (Port Moody–Coquitlam NDP)
	* denotes member present
Clerk:	Susan Sourial
Committee Staff:	Matthew Cleeves (Committee Research Analyst)

Witnesses:	David Eby (Executive Director, British Columbia Civil Liberties Association)
	Dr. Christine Hall

REPORT OF PROCEEDINGS (Hansard)

SPECIAL COMMITTEE TO INQUIRE INTO THE USE OF CONDUCTED ENERGY WEAPONS AND TO AUDIT SELECTED POLICE COMPLAINTS

REPORT OF PROCEEDINGS
(Hansard)

SPECIAL COMMITTEE TO
INQUIRE INTO THE USE OF CONDUCTED ENERGY WEAPONS AND TO AUDIT SELECTED POLICE COMPLAINTS