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The Honourable Thomas R. Braidwood, left listens to TASER International's Chairman of the Board and Cofounder Tom Smith's presentation at the Braidwood Inquiry on the use of tasers in Vancouver, Monday, May 12, 2008. (RICHARD LAM/Canadian Press)
The Honourable Thomas R. Braidwood, left listens to TASER International's Chairman of the Board and Cofounder Tom Smith's presentation at the Braidwood Inquiry on the use of tasers in Vancouver, Monday, May 12, 2008. (RICHARD LAM/Canadian Press)

Retired judge calls for clear taser rules Add to ...

Ontario should take a page from British Columbia on guidelines about when police should use conductive energy weapons, says the retired judge who led B.C.’s Braidwood Inquiry into the death of a Polish immigrant who was tasered in 2007.

The test for when it is appropriate for a police officer to discharge a CEW is among the most important recommendations made by the inquiry, Thomas Braidwood, formerly of the British Columbia Court of Appeal, told The Globe and Mail in a recent interview.

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As a result of the inquiry’s findings, police in B.C. are prohibited from deploying a taser unless “the subject is causing bodily harm or the officer is satisfied, on reasonable grounds, that the subject’s behaviour will imminently cause bodily harm.”

“It is very simple to understand,” said Mr. Braidwood. The grounds to discharge a taser must be very clear for officers, so that they are used properly, he explained.

In contrast, the threshold in Ontario is that a CEW can be used if an individual is engaging in “assaultive behaviour,” which can include rude gestures, according to the use-of-force model employed by police.

“That is so vague, who knows what it is,” said Mr. Braidwood. “Assaultive behaviour? I don’t like that. It can mean whatever you want it to mean,” he said.

The Ontario government decided in late August to permit all police forces in the province to expand the number of officers equipped with tasers, which are classified as intermediate use-of-force weapons, along with batons and pepper spray.

As Toronto’s police force continues its bid to arm more of its front-line officers with tasers, concerns around use-of-force protocols and training are being raised by civil rights groups and members of the city’s police services board, a civilian oversight body.

The announcement by the province came a month after 18-year-old Sammy Yatim was shot to death on a streetcar by a Toronto police officer, who has since been charged with second-degree murder. Mr. Yatim was hit by eight bullets and then tasered by another officer as he lay dying in the streetcar.

The Ontario government says it plans to implement new training requirements this fall for officers with tasers, making it mandatory for eight hours initially and then followed up by a four-hour review course each year. The review course will focus on “judgment-based exercises,” said a spokesman for the Ministry of Community Safety and Correctional Services.

Julian Falconer, a civil rights lawyer who is representing the mother and sister of Mr. Yatim, is skeptical about whether this training will prove effective, citing the circumstances of Mr. Yatim’s death. The officer who tasered Mr. Yatim “applied a serious electric shock to a young man with eight bullets in him,” he said.

In outlining the reasons for the policy change, the Ontario government cited the findings of a dozen coroner’s inquest juries in the past decade that have either suggested equipping all uniformed officers with tasers or called for more study of the issue.

Absent from its announcement was any reference to the inquest into the death of Aron Firman, who died in 2010 after a taser was discharged by an Ontario Provincial Police officer responding to an assault complaint. Mr. Falconer, who also represents the Firman family, finds this troubling. Most of the 12 sets of jury recommendations cited by the province were from inquests into fatal shootings by police officers and none were focused on a death related to a taser. “The only jury to look at the issues squarely, made no such recommendation” to equip more officers with tasers, said Mr. Falconer.

The jury, which heard from the province’s chief pathologist that Mr. Firman’s death was a result of cardiac arrhythmia “precipitated by electronic control deployment in an agitated schizophrenic man,” called for more training of officers and more data about CEW use. The pathologist’s finding is the first time that the use of a taser has been considered a key factor in the death of someone in Ontario.

However, the Office of the Chief Coroner is supportive of the government’s move to equip more officers with tasers. Dr. William Lucas, Deputy Chief Coroner in Ontario, who also presided over the Firman inquest, calls tasers “a viable alternative to lethal force.”

Ontario’s recent decision to allow more tasers followed several years of lobbying from groups such as the Ontario Association of Chiefs of Police (OACP). Paul Cook, president of the OACP and chief of police in North Bay, said equipping more officers with tasers will improve public safety. “If an officer does not have a CEW, it could result in a tragic outcome. You may be forced to use your firearm,” said Chief Cook. At the same time, he agreed that along with more tasers, other measures are necessary, including more funding for people with mental health issues. “This isn’t a magic wand. It is just one of the options,” he said.

The Braidwood Inquiry into the death of Robert Dziekanski heard that 25 people in Canada died between 1999 and 2007, in incidents where police used a taser. Mr. Braidwood found that the use of the CEW by the RCMP “contributed substantially” to the death of Mr. Dziekanski.

All of his 19 recommendations were adopted by the B.C. government. A legislative committee that reviewed his findings last year heard that taser use by police decreased by nearly 90 per cent between 2007 and 2011, without any evidence of an increase in lethal force.

The Braidwood findings are a model that should be followed in the rest of the country, said Dr. Shaohua Lu, a Vancouver psychiatrist who gave expert evidence at the inquiry and before the legislative review committee. “I am not advocating against tasers. It can be a useful tool to manage escalating situations,” he said. But when dealing with an individual in an agitated state, there is an increased physiological and emotional vulnerability. “They are scared. They are fearful. The number one priority is to see if you can talk to them in a calm fashion. Use de-escalation. This is where the training comes in,” he said.

Ontario’s deputy chief coroner says he is fully supportive of more training for officers, but he also suggested there is more research needed about tasers and the actual risks of the device. Dr. Lucas noted that the pathologist’s conclusion in the Firman case - that the discharge of a taser was a significant factor in a death – was not entirely accepted by the jury. “It was way down the list [of factors],” said Dr. Lucas, who added that he does not share the view of the Braidwood Inquiry about the cause of death of Mr. Dziekanski. “If this death had occurred in Ontario, we would not have come to the same conclusion,” as a result of the location of the use of the tasers in stun mode as being “too remote from the heart,” he explained.

Marcus Firman, Aron’s father, is not calling for an absolute prohibition on tasers, but he thinks the weapons should be a last resort. His greater concern is that the evidence from the inquest into his son’s death, is not ignored. “Mental health issues have been downloaded to front-line officers. More research and safeguards need to be in play to protect the most vulnerable in our society,” he said.

Of Mr. Braidwood’s recommendations, he highlighted a requirement that police with tasers are also equipped with defibrillators, to use on a suspect if a CEW is discharged.

The Ontario government does not require officers to carry defibrillators. A spokesman for the corrections ministry says there are no immediate plans to review its standard for when an officer is justified in using a taser.

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