2013 QCCQ 15871, 2013 QCCQ 15871

Unofficial English Translation Bordeleau c. Simard 2013 QCCQ 15871 COURT OF QUEBEC Administrative and Appeal Division ‘ CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL “Civil Division” No.: 500-80-021561-122 No.: 500- 80-021484-127 DATE: November 25, 2013 ________________________________________________________________ THE HONOURABLE DAVID L. CAMERON, J.C.Q., PRESIDING ________________________________________________________________ No.: 500-80-021561-122 YANNICK BORDELEAU - and - STEVE THIBERT Appellants v. CLAUDE SIMARD Respondent - and - No.: 500-80-021484-127 CLAUDE SIMARD Appellant v.

STEVE THIBERT Respondent JUDGMENT [ 1 ] The appellants, Officers Yannick Bordeleau and Steve Thibert, appeal from the judgment on guilt rendered on September 26, 2011, by the Police Ethics Committee presided by Mtre Richard W. Uiticone (the “Committee”), as well as the judgment on penalty rendered by the Committee on January 30, 2012. [ 2 ] In the related appeal, Mtre Claude Simard appeals the judgment on penalty with respect to Officer Steve Thibert only.

THE CITATIONS [ 3 ] The citations dated September 3, 2009, issued by the Police Ethics Commissioner (the “Commissioner”) set out the following: [ translation ] The Police Ethics Commissioner summons to appear before the Police Ethics Committee Officer Yannick Bordeleau, badge number …, member of the Service de police de la Ville de Montréal: 1. Who, in Montreal, on or around October 14, 2007, while in the performance of his duties, abused his authority over Quillem Registre (deceased) by using greater force than necessary to accomplish what was permitted, thus committing a derogatory act under

section 6 of the Code of ethics of Québec police officers (P-13.1, r. 1); 2. Who, in Montreal, on or around October 14, 2007, while in the performance of his duties, used a piece of equipment, more specifically, a Taser X-26 conducted energy device (CED), without judgment or care, against Quillem Registre (deceased), thus committing a derogatory act under

section 11 of the Code of ethics of Québec police officers (P-13.1, r. 1). [ 4 ] The same day, the Commissioner filed the following citation with the Committee against Officer Steve Thibert: [ translation ] The Police Ethics Commissioner summons to appear before the Police Ethics Committee Officer Steve Thibert, badge number ..., member of the Service de police de la Ville de Montréal:

1. Who, in Montreal, on or around October 14, 2007, while in the performance of his duties, abused his authority over Quillem Registre (deceased), by using greater force than necessary to accomplish what was permitted, thus committing a derogatory act under

section 6 of the Code of ethics of Québec police officers (P-13.1, r. 1); 2. Who, in Montreal, on or around October 14, 2007, while in the performance of his duties, did not respect the authority of the law in regard to Quillem Registre (deceased) by not intervening at the time of the abusive use of the Taser X-26 conducted energy device (CED) by Officer Yannick Bordeleau, badge number ..., thus committing a derogatory act under

section 7 of the Code of ethics of Québec police officers (P-13.1, r. 1). [ 5 ] On September 26, 2011, the Committee ruled as follows: [ translation] C-2009-3555-3 [Bordeleau] Count 1: [128] THAT Officer YANNICK BORDELEAU, badge number …, member of the Service de police de la Ville de Montréal, on October 14, 2007, in Montreal, abused his authority over Quillem Registre (deceased) by using greater force than necessary to accomplish what was permitted and that, consequently, his conduct constitutes a derogatory act under

section 6 of the Code of ethics of Québec police officers ; Count 2 [129] ORDERS a conditional stay of proceedings under this count to avoid multiple convictions arising out of the same set of facts in accordance with the principles set out by the Supreme Court of Canada in Kienapple . C-2009-3556-3 [Thibert] Count 1 [130] THAT Officer STEVE THIBERT, badge number …, member of the Service de police de la Ville de Montréal, on October 14, 2007, in Montreal, did not abuse his over Quillem Registre (deceased) and did not use greater force than necessary to accomplish what was permitted and that, consequently, his conduct does not constitute a derogatory act under

section 6 of the Code of ethics of Québec police officers . Count 2 [131] THAT Officer STEVE THIBERT, badge number …, member of the Service de police de la Ville de Montréal, on October 14, 2007, in Montreal, did not respect the authority of the law in regard to Quillem Registre (deceased) by not intervening at the time of the abusive use of the CED by Officer Bordeleau and that, consequently, his conduct constitutes a derogatory act under

section 7 of the Code of ethics of Québec police officers . [ 6 ] The formal effects of this decision differ with respect to the two officers. While the individual conduct of Officer Thibert was declared not to constitute a derogatory act under

section 6, he was held responsible for not having intervened at the time of the use of the CED by Officer Bordeleau, which was found to be abusive.

The use of the CED by Officer Bordeleau, however, is subject to a stay of proceedings in accordance with Kienapple . [ 7 ] In fact, this same use of the CED by Officer Bordeleau that was found to be abusive is comprised in the judgment on guilt in regard to excessive force in the first count. [ 8 ] As a result of the wording in the counts, Officer Thibert was acquitted on the first count of abuse of authority, but found guilty of not having intervened at the time Officer Bordeleau abused his authority. [ 9 ] These distinctions are important in the context of penalties.

APPEAL OF PENALTIES [ 10 ] The judgment on penalty rendered on January 30, 2012, acknowledges a distinction between the conduct of Officer Bordeleau, who was found to have abused his authority under

section 6 and who received a suspension without pay for twenty eight-hour work days, and that of Officer Thibert, who received the same suspension but for five days only. [ 11 ] In their alternative conclusions, the officers seek the reduction of their respective penalties.

[ 12 ] The Commissioner asks that the penalty imposed on Officer Thibert be overturned and replaced with a twenty-day suspension, equivalent to the penalty imposed on Officer Bordeleau. THE REASONS FOR THE JUDGMENT ON GUILT AND THE GROUNDS OF APPEAL [ 13 ] The appellants set out their grounds of appeal in several paragraphs labelled (

a) to (p). [ 14 ] Before summarizing these grounds of appeal, it is worth first reviewing the key conclusions of the judgment. The Committee was of the following opinion: [ translation ] 1. The officers should have approached the suspect immediately after the first electric discharge from the CED, thus taking advantage of the five-second opportunity it provided to handcuff him during the period of neutralization. 2. Having failed to do so, Officer Bordeleau continued, discharging the CED six times in total and intervening to control the suspect only after the fifth discharge. 3.

The second to sixth discharges were excessive and unreasonable, thus constituting an offence of abuse of authority under

section 6 by Officer Bordeleau. 4. Officer Thibert should have told Officer Bordeleau to stop using the CED as of the second discharge. His failure to act in this manner constitutes a breach of his obligation to respect the authority of the law under

section 7. [ 15 ] To facilitate the comparison between the principal reasons for the decision and the grounds of appeal, the grounds may be grouped into the following categories:

A) Those invoking the general notion of an unreasonable decision or a decision rendered without reasons (grounds of appeal a, b, e, f, i, l and o): (

a) Did the Police Ethics Committee err in fact and in law by drawing unreasonable conclusions from the evidence before it? (

b) Did the Police Ethics Committee err in fact and in law by concluding that the Police Ethics Commissioner met his burden of proof in this case? (

e) Did the Police Ethics Committee err in fact and in law by rendering a decision that does not fall “within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”, thus rendering an unreasonable decision?* [1] (

f) Did the Police Ethics Committee err in fact and in law by inadequately assessing the expert testimony presented relating to the use of conducted energy device? (

i) Did the Police Ethics Committee err in fact and in law by considering hypothetical scenarios not based on the evidence in its assessment of the evidence presented? (

l) Did the Police Ethics Committee err in fact and in law by failing to consider or by failing to sufficiently consider the evidence presented in defence? (

o) Did the Police Ethics Committee err in fact and in law by failing to provide sufficient reasons for its conclusions?

B) Those generally attacking the finding of ethical liability on the two relevant counts (grounds c and d). (

c) Did the Police Ethics Committee err in fact and in law by concluding that Officer Bordeleau’s conduct constituted breaches of sections 6 and 11 of the Code of ethics of Québec police officers ? (

d) Did the Police Ethics Committee err in fact and in law by concluding that Officer Thibert’s conduct constituted a breach of

section 7 of the Code of ethics of Québec police officers ? (

C) More specific grounds: (

i) On the training that the officers had received (grounds g, h, j and k): (

g) Did the Police Ethics Committee err in fact and in law in its analysis of Éric Maheux’s testimony by confusing the characteristics of what the appellants were taught with what was taught later, after their training? (

h) Did the Police Ethics Committee err in fact and in law by failing to consider or by failing to sufficiently consider the opinion of the expert witness Poulin whereby the appellant Bordeleau’s conduct in these circumstances was consistent with the training that he received? (

j) Did the Police Ethics Committee err in fact and in law by accepting on the one hand that police officers were taught not to approach a person having received a discharge from a conducted energy device so long as the person was not compliant, but by finding on the other hand that the appellants should have intervened during the neuromuscular contraction regardless of whether or not the suspect was compliant?

(

k) Did the Police Ethics Committee err in fact and in law by finding, despite the evidence presented before it, that handcuffs should have been applied during the neuromuscular neutralization cycle? (ii) On the conclusion regarding the second to sixth discharges (ground n): (

n) Did the Police Ethics Committee err in fact and in law by concluding that, after the first discharge of the conducted energy device, the subsequent discharges were excessive and unreasonable? (iii) On the criticism of Officer Thibert’s conduct in regard to the suspect once he was on the ground (ground m): (

m) Did the Police Ethics Committee err in fact and in law by criticizing the appellant Thibert’s slowness in approaching Mr. Registre and the ineffective methods used to control him on the ground? (iv) On the duty of Officer Thibert to remind his colleague of the rules regarding the use of the CED (ground p): (

p) Did the Police Ethics Committee err in fact and in law by finding that the appellant Thibert [ translation] “should have warned his colleague Bordeleau to stop using the conducted energy device and help him control” Mr.

Registre on the ground? 500-80-021561-122; 500-80-021484-127 PAGE: 7 ANALYSIS Background facts [ 16 ] The context in which this case arises is summarized at paragraphs 3 to 16 of the decision. [ 17 ] Essentially, late in the evening of October 14, 2007, Officers Bordeleau and Thibert pulled over a vehicle for highway code violations and attempted to arrest the driver, Quillem Registre. [ 18 ] Mr. Registre appeared to be suffering from “excited delirium” (ED). When Officer Thibert opened the vehicle door to remove him, Mr.

Registre caused the vehicle to accelerate and, losing control, hit three vehicles parked nearby one after the other, finally coming to a stop at an angle across the sidewalk. [ 19 ] Mr. Registre was hysterical. His seatbelt was unfastened and the air bags had deployed. When Officer Bordeleau opened the driver-side door, Mr. Registre placed his legs outside of the vehicle, kicked Officer Bordeleau, and tried to punch him. Basically, he displayed violent and uncontrollable behaviour. [ 20 ] Officer Bordeleau immobilized Mr.

Registre by placing his hand on his chest. [ 21 ] Officer Thibert approached, yelling “[ translation] taser, taser”, indicating to Officer Bordeleau to use the CED, while positioning himself so as to prevent Mr. Registre from leaving the scene. [ 22 ] When Officer Bordeleau pointed the CED at Mr. Registre’s chest, the latter exited his vehicle to flee. [ 23 ] Upon the first CED discharge, Mr. Registre fell to the ground face first, with his hands underneath him. [ 24 ] Up to this point in the narrative, the Committee had no criticism of the two officers’ conduct.

The Committee’s factual analysis in support of its judgment on guilt began as of the moment that Officer Bordeleau asked Registre to show his hands. The Committee’s factual analysis [ 25 ] It is apparent from the Committee’s analysis of the facts that the conduct at issue is not limited merely to the use of the CED. Rather, the subject of criticism is the combination of the use of the CED with the conduct on the ground and directly on the person by Officer Thibert and Officer Bordeleau in turn. [ 26 ] According to the Committee’s

summary of the facts, Officer Thibert used physical contact on Mr. Registre as of the second discharge of the CED. After successive discharges, he progressively gained control, first of Mr. Registre’s left arm and then of his wrist and left elbow. [ 27 ] Still according to this

summary, after the fifth discharge, Officer Bordeleau tried unsuccessfully to take control of the suspect’s right arm. Eventually, after the sixth CED discharge, he gained control of his right arm and stopped using the CED. [ 28 ] Once each of the officers had control of one of Mr.

Registre’s arms, and after another approximately twenty to thirty seconds of struggle, the two officers managed to place him in handcuffs. [ 29 ] To assess whether this intervention constituted, in whole or in part, an abuse of authority by either of the officers, the Committee heard factual and opinion evidence on the nature and effects of the CED, the training provided to police officers on its use and particularly its place on the spectrum of techniques involving the use of force from the weakest to the strongest, the two methods of using a CED, the ideal distance for its use, the number of cycles, and the intervals that should be waited between cycles. [ 30 ] The Committee also specifically considered the use of a CED on a person suffering from “excited delirium” (ED).

[ 31 ] The central question for the Committee became the use of a CED to compel a person to submit versus its use to obtain a window of opportunity to jump on a person and subdue him with physical force during his neuromuscular neutralization. [ 32 ] The Committee questioned the decision to use the CED, given the physical proximity of the individuals: [ translation ] [91] It appears from the evidence, from the testimony of the expert witnesses Poulin and Brave, from that of Officer Maheux, and from the filing of an SPVM directive [17] on the use of force that the use of a CED is recommended and even [ translation ] “prioritized” in the case of ED. [92] According to the evidence submitted by Officers Bordeleau and Thibert, Mr.

Registre presented with the symptoms of a person suffering from ED. [93] The Committee nevertheless questions Officer Bordeleau’s decision to use the CED on Mr. Registre given their proximity. [ Emphasis added. ] [94] In this regard, it is important to keep in mind the testimony of Officer Bordeleau whereby he was restraining Mr. Registre by pressing his hand against his chest while Mr. Registre was sitting in his car and kicking the police officer. [95] The Committee finds the testimony of Officer Bordeleau to be revealing with regard to this part of the incident. He states that it was impossible to remove Mr.

Registre from the car while he was restraining him. He waited for his colleague to arrive. He considered himself to be in control of Mr. Registre because he was standing up, whereas Mr. Registre had lost his balance. Mr. Registre had to stay with him as he was completely disconnected from reality and a danger to himself and, because of his state, needed to be taken to the hospital. [96] When Officer Bordeleau testified that he was waiting for his colleague to arrive, the Committee inferred that Officer Bordeleau was waiting for Officer Thibert to help him remove Mr.

Registre from the vehicle and then place him on the ground and handcuff him. [97] Would it not have been more appropriate for the police officers to remove Mr. Registre from his car and subdue him immediately? While this is the method of control that should have been used, the Committee gives Officer Bordeleau the benefit of the doubt in regard to his decision to use the CED on Mr. Registre the first time. [ 33 ] Despite their doubts, the Committee concluded that Officer Bordeleau was justified in using the CED the first time.

The appellants criticize the Committee’s hesitation, which it expressed as follows: “[ translation ] The Committee gives Officer Bordeleau the benefit of the doubt with respect to his decision to use the CED”. [ 34 ] Submitting that there is nothing in the evidence to suggest that the use of the CED was unwarranted and that the evidence fully justified its use, the appellants contest the Committee’s hesitation to admit that this conduct was well founded. [ 35 ] The rhetorical question posed by the Committee at paragraph 97 seems to be, as the appellants submit in their factum, [ translation ] “characteristic and indicative of the logic guiding the decision-maker at first instance”, i.e. the search for what could have been the ideal intervention, rather than a reasonable intervention.

It is as if the Committee was seeking to substitute its own judgment instead of verifying whether the police officers’ conduct was reasonable. [ 36 ] It is not necessary to consider this issue any further, as this part of the analysis is not central in the decision. [ 37 ] The remainder of the analysis is determinative to their decision. The issue was not the decision to use the CED but rather the manner in which it was used.

The Court refers to paragraphs 98 to 107: [ translation ] [98] That said, what should be determined about Officer Bordeleau’s use of the CED five more times? [99] During the CED training he gave to officers Bordeleau and Thibert, Officer Maheux explained the effect and duration of the transmission of an electrical discharge on a person. There is neuromuscular neutralisation, i.e. a contraction of the muscles that lasts five seconds, and the person cannot move during these five seconds. The central nervous system is neutralized.

This is also what emerged from the testimonies of the expert witnesses Poulin and Brave. [100] Mr. Registre fell flat on the ground, on his stomach, his hands underneath him, following the first use of the CED. [101] The Committee questions the inaction of Officers Bordeleau and Thibert following this first use. The police officers did not move. Yet Mr. Registre was flat on his stomach on the ground, and they knew that the muscular contraction lasts five seconds. Since they were just a few feet away from Mr.

Registre, there was enough time for them to jump on him, grab his arms, and handcuff him. [102] The expert witnesses Poulin and Brave emphasized the importance for a police officer who has discharged a CED to intervene quickly to subdue the individual and ensure that he or she receives the required medical care as soon as possible. [103] Page 100 of the training course [18] given by Officer Maheux to officers Bordeleau and Thibert in 2006 states with regard to the viewing of two videos (“Toronto [19] ”) dealing with real incidents involving the use of a CED on a suspect stated that handcuffs should be applied during the five-second cycle during which the effect of the electrical discharge lasts.

It appears from the video that, following the use of the CED, the police officers approached the suspect quickly, threw themselves on him in order to subdue him, and then handcuffed him.

[104] That is not what officers Bordeleau and Thibert did in this case. [105] Officer Bordeleau approached Mr. Registre only after the fifth discharge, doing nothing more during the second, third, and fourth discharges than yell at Mr. Registre to put his hands up. [106] It is worth repeating the testimony of the expert witness Poulin that a person presenting with the symptoms of ED is unable to understand a police officer’s orders. [107] With respect to Officer Thibert, the Committee is troubled by the slowness with which he approached Mr.

Registre and the ineffective methods he used to control him on the ground. He approached him only during the second discharge, putting pressure on his left arm, and pressed his knee against his back only after the fourth discharge. Criticism of the Committee’s Decision-Making Process [ 38 ] Recent decisions of the Superior Court confirm the state of the law in such matters, i.e. that the Court of Quebec, it its role as reviewer of a decision comprising questions of fact and questions of mixed fact and law must show deference.

The standard of review is therefore that of reasonableness. [ 39 ] The Court of Quebec: [ translation ] 41. … may not substitute its own judgment on questions of fact and of credibility unless it detects a palpable and overriding error in the assessment of the testimony and the inferences drawn from the facts submitted into evidence. It must establish that the Committee’s decision was not among the reasonably possible outcomes. [2] [ 40 ] In the present case, credibility is not at issue. The Committee in no way dismissed the version of the police officers or of the expert and other witnesses on the use of force.

That said, the instructions remain applicable: the reviewer’s role is not to provide a second opinion on what should have been the correct decision, but rather to verify the decision-making process by way of an analysis of its reasonableness. [ 41 ] It is appropriate to refer to the definition in Southam [3] explaining what was then called the standard of reasonableness simpliciter : An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination.

Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it. The defect, if there is one, could presumably be in the evidentiary foundation itself or in the logical process by which conclusions are sought to be drawn from it. An example of the former kind of defect would be an assumption that had no basis in the evidence, or that was contrary to the overwhelming weight of the evidence.

An example of the latter kind of defect would be a contradiction in the premises or an invalid inference. [ 42 ] Now that the standard of reasonableness simpliciter has been merged with the standard of patent unreasonableness, we rely on the phrase “ probing examination ” . [ 43 ] To adopt the words of Grenier J., it is not appropriate to [ translation ] “dissect the Committee’s decision and analyze its every detail”.

Instead, the decision should be [ translation ] “considered as a whole” . [4] [ 44 ] In the Court’s opinion, this analysis requires focusing on the determinative or principal points of the decision-maker’s reasoning and verifying their coherence. [ 45 ] In the present case, it is appropriate to begin by a comparison of the “Assessment of the evidence and reasons for the decision”

section of the Committee’s decision with its

summary of the facts. It should be noted that, at paragraphs 21 to 27, the Committee had already decided, as a question of fact, that Officer Thibert started his manoeuvres on the ground during the second discharge . It was therefore inconsistent for the Committee to state at paragraph 101 that [ translation ] “Officer Thibert did not move and did not seize the opportunity to seize the suspect”.

The same incoherence is apparent at paragraph 101, in which the Committee stated, [ translation ] “The police officers did not move”. [ 46 ] It is apparent to a reader analyzing the decision as a whole that this inconsistency occurs during the analysis of the appellants’ conduct in light of the training they received. It is the result of a serious error on behalf of the Committee on the nature of the training that the officers had received. [5] [ 47 ] It is significant that the Committee found, based on the evidence on the training provided to Mr.

Bordeleau, that the students had received no instruction about the number of CED cycles that a police officer should discharge on a subject and that no waiting period was recommended between each cycle. [ translation ] [68] At the time Officer Bordeleau received his training, the students received no instruction about the number of CED cycles that an officer should discharge on a subject, and there was no waiting period recommended between each cycle.

The determination of the number of discharges appropriate in each situation is left up to the police officer’s judgment. [ 48 ] The Committee later concluded as follows: [ translation]

[76] In 2006, the police officers were not instructed that there should be an interval between two cycles for the purpose of giving orders and allowing the person some reaction time to understand the orders before the officer discharges a second cycle. [ 49 ] In another passage characteristic of this factual analysis, the Committee wrote the following, at paragraph 74: [ translation ] [74] They are instructed to use probe mode, to let the person fall, to order the person to put their hands behind their back and, for the officers’ security, not to approach the person until they are compliant and neutralized before handcuffing them. [Emphasis added] [ 50 ] That being said, in the context, the following paragraph seems to contain a direct contradiction with the foregoing: [ translation ] [75] Once the suspect is on the ground and in neuromuscular neutralization, the police officer may take hold of the suspect’s hands, bring them behind the suspect’s back, and place the handcuffs on the suspect’s wrists.

The officer must use this window of opportunity to handcuff the person quickly and avoid the cycles. [ 51 ] The reader has no choice but to question this contradiction.

Was Officer Bordeleau taught that he needed to obtain the suspect’s compliance and wait for him to show his hands before applying the handcuffs, or were the instructions not to wait for compliance and to jump on the suspect immediately after the electrical discharge, regardless of whether or not he was willing to comply? [ 52 ] Depending on what is understood from these two consecutive paragraphs of the decision, the CED operator has two incompatible duties: to wait for the suspect to comply once he has regained use of his muscles on the one hand, and to jump on the temporarily paralyzed suspect on the other. [ 53 ] The key to understanding this apparent paradox is that the training as described by the Committee at paragraphs 68, 74, and 76 and given to Officer Bordeleau in 2006 has been modified since then. [ 54 ] The Committee heard factual and expert evidence on the content of the training provided in North America over the years. [ 55 ] The Committee acknowledged the content of the training provided in 2006 as fact, but did not consider it in its analysis.

The Committee ruled on Officer Bordeleau’s conduct on the basis of training that he did not receive . [ 56 ] Since this incident, the approach to the training has evolved.

Under the new approach, officers are told to take advantage of the five-second period of neuromuscular neutralization after discharging the CED to handcuff the individual, regardless of whether the suspect has complied or is still resisting arrest. [ 57 ] It is not the objective of the Court now hearing this appeal to comment on the appropriateness of the former training compared to the training currently given, or to perform its own analysis of the officers’ conduct in light of the principles of police ethics. [ 58 ] Its role is limited to an analysis of the Committee’s decision-making process. [ 59 ] An exhaustive review of the evidence reveals that the three people examined on the issue of training – Officer Éric Maheux for the prosecution, Bruno Poulin, expert for the defence, and Michael Alan Brave, representative of Taser International, who was also recognized as an expert witness – confirmed that the training the appellants received in 2006 is correctly described by the finding of fact in paragraph 74, not that in paragraph 75. [ 60 ] For greater certainty, the Court reproduces a few relevant excepts from the testimonies: [ translation] C-2009-3555 11-05-2011 Ex.

Maheux Page 124 8 Mtre MATHIEU: 9 Exactly. The person doesn’t exactly realize what 10 just happened, for someone who is 11 dazed, it’s like ... .Stunned is very surprised, but 12 dazed, it’s like the person doesn’t necessarily make 13 the connection with what happened. 14 Q. Is this taught? 15 A. Yes.

16 Q. When there are discharges, the understanding is that 17 they are taught to give a discharge, to 18 let go of the trigger. So, in other words, to administer five seconds 19 of Taser on an individual? 20 A. Uh-huh! 21 Q. Here, we see that the individual ... let’s call him, 22 let’s say the victim, or the suspect in any event ... 23 A. The subject. 24 Q. ... the subject, ok, may become dazed or stunned. 25 How many times can the Taser C-2009-3555 11-05-2011 Ex. Maheux Page 125 1 be used? Are there recommendations on 2 the maximum number of discharges that may be administered? Are 3 there situations? 4 A.

There ... 5 Q. What is taught on this aspect? 6 A. There was no number of discharges or number 7 of ... at the time, there was nothing ... that 8 specified that it was necessary to discharge two, three, four, or 9 six. It was really left to the officer’s judgement. 10 Q. I imagine that, like in the case of other weapons, 11 it was necessary to assess, whether, in fact, any 12 gain had been made and reassess the plan, if 13 not? 14 A. That’s it. It’s necessary to reassess the effectiveness 15 every time and try to do what you 16 can to arrive at the result. 17 Q.

And like here, it is possible that an individual may 18 become dazed, and therefore wonder what just 19 happened; are you taught to space out the 20 Taser discharges by a certain amount of time, to allow 21 the person to... 22 A. Well, in fact... 23 Q. ... realize or answer the orders, the,

24 if any are given? 25 A. ... well, in fact, what is taught, is to C-2009-3555 11-05-2011 Ex. Maheux Page 126 1 observe the individual’s behaviour, and it may 2 happen that we need ... we can give the person 3 orders, and it can take two, three, 4 four, or five seconds before there is a second 5 discharge, just like there could be one right away 6 after the first, if we see ... for example, that the person 7 gets back up on his feet right away and that 8 absolutely nothing has changed. 9 Q. Every time that the Taser is activated for five 10 seconds, is it already ready?

At 11 the end of the five seconds, is it already 12 ready to be discharged again immediately or is there a 13 lapse of time? 14 A. No, no. As soon as the five seconds 15 allows, well, we can press again, and it will go off again 16 for another five seconds. 17 Q. It is already recharged? 18 A. Yes. 19 Q. So ... there is no lapse of time between the 20 two, ok.

And, specifically in the case of individuals in 21 an impaired state or ... you 22 also spoke about those suffering from mental illness, were 23 any special considerations 24 brought to the attention of the police officers who took the course at 25 that time? C-2009-3555 11-05-2011 Ex. Maheux Page 127 1 A. In fact, at the time, no, there were none.

2 It was ... at the time, pretty much across 3 Canada, conducted energy devices were used 4 practically like compliance tools. That is, 5 we asked. We would give orders, and 6 if that didn’t work, we would administer another 7 discharge, and I would give you orders. I would give you 8 an order. I would tell you what to do. If that 9 didn’t work, after that, we would administer another 10 discharge, etc., etc. And we would reassess, 11 of course, meanwhile, if we had other options 12 available to us. C-2009-3555 11-05-2011 Ex. Maheux Page 139 Q.

You taught them, that it could range from minor to 6 more serious, the injury, I imagine ... 7 A. Yes. 8 Q. ... the spectrum of risk? 9 A. Well, there are risks in terms of collapse, to 10 always remember that there could be a risk 11 of collapse, when the individual falls, because 12 the individual will not be in control of how they fall. 13 Q. When we speak of the use of the Taser, are 14 we also perhaps speaking about its positioning or of what 15 we can expect from the police officer’s partner, 16 when they are in a team of two? Is this aspect 17 addressed? 18 A.

Well, in fact, at the time, there was no ... 19 that is, we would … if the ... if they were 20 partners, if they were in a team of two, it the 21 partner was able to approach to 22 attempt a handcuffing hold, he or she 23 would, but we didn’t have any 24 specific training on this at the time. 25 Q. You do now?

C-2009-3555 11-05-2011 Ex. Maheux Page 140 R. Well, now, with the course we have developed 2 with the École Nationale , we started a course in which 3 we are going to discuss teamwork, that is, 4 working one against one, two against one, three against 5 one, with a conducted energy device. 6 Q. Was there a course on, at 7 that time, on excited delirium and 8 the intervention ... 9 A. No. 10 Q. ... of the police officers? 11 A. No. 12 Q. Is there one now? 13 R. Well, excited delirium is part of the course 14 on conducted energy devices now. 15 Q. Now being 2008, so, since 2008? 16 A.

Since 2008. [ 61 ] There is nothing in the evidence suggesting that Officers Bordeleau and Thibert received training consistent with the conduct that the Committee would have wanted Officer Bordeleau to adopt. Clearly, therefore, the Committee erred in regard to the training in place at the time the appellants received their instruction. Consequently, the criticism of Officer Bordeleau’s conduct as inconsistent with this training is not one of the possible outcomes of this question of fact.

This criticism, which is based on an analysis of this fundamental issue of the decision, makes no sense. [ 62 ] It is now appropriate to analyze paragraph 103 of the decision to understand how the Committee was able to conclude that the officers’ conduct was not consistent with the training they received: [ translation ] [103] Page 100 of the training course [18] given by Officer Maheux to officers Bordeleau and Thibert in 2006 states, with regard to the viewing of two videos (“Toronto [19] ”) dealing with real incidents involving the use of a CED on a suspect, that handcuffs should be applied during the five-second cycle during which the effect of the electrical discharge lasts.

It appears from the video that, following the use of the CED, the police officers approached the suspect quickly, threw themselves on him in order to subdue him, and then handcuffed him. [ 63 ] The evidence before the Committee included several videos demonstrating the use of the CED in training sessions and in real situations.

This was extensive evidence on the various uses of a product that is relatively new on the market and unknown by the public and even by police forces, depending on the level of training received. [ 64 ] The Committee gave no indication as to why it made no mention of the majority of these videos and why those entitled “Toronto” have particular significance. [ 65 ] The training course to which the Committee refers is a PowerPoint presentation consisting of some 164 slides. [ 66 ] The text of slide 100 reads as follows: [ translation ] Aspects specific to the use of probes Points to note in the following video : • Use of a diversion

• Use of barricades, shields, and back-up police officers. • Establishment of a handcuffing plan before the use of probes. • Handcuffs are applied during the five-second CED cycle. [ 67 ] The Committee seized upon the phrase [ translation ] “handcuffs are applied during the five-second CED cycle”. [ 68 ] This is a text intended to bring the students’ attention to the content of the video. The Committee gave it much greater importance. [ 69 ] The Committee referred to two videos entitled “Toronto”.

The first is of an event in a large park during which a multitude of police officers confront an individual from whom they had first obtained, after long negotiations, the surrender of a firearm. Subsequently, while the individual is standing immobile, keeping his hands in his pockets in which he is hiding a weapon, the CED is discharged on him and he falls.

In the seconds after his fall, four police officers approach the individual and two others, armed with guns, position themselves so as to protect their colleagues. [ 70 ] The police officer handling the CED was protected inside an armoured truck. [ 71 ] According to the police officer interviewed, before the use of the CED, the individual had been standing motionless for two hours. [ 72 ] In addition to these elements, which are very different from the circumstances of the present case, we do not see the suspect being handcuffed. [ 73 ] The second video shows an individual in a park holding a knife and screaming.

The police first use three bombs called “concussion grenades”, unsuccessfully. When the individual falls under the effect of the CED, approximately seven police officers, several of whom are armed, immediately approach him. We do not see him being handcuffed, but in the context it is clear that he was quickly subdued. [ 74 ] Both videos show tactical squads wearing protective gear such as bullet-proof vests, with some members carrying what appear to be automatic weapons.

In the second video, a dog can be seen. [ 75 ] The Committee was not wrong in stating that agents Bordeleau and Thibert did not carry out the same actions as can be seen in the “Toronto” videos. But was it reasonable for the Committee to make this comparison?

Could two patrol officers react in the space of a few seconds in the same manner as the tactical squads in the videos, who are seen intervening after a long phase of negotiation and preparation? [ 76 ] What about the video entitled “Traffic Stops”, in which we see a demonstration of what Officer Bordeleau learned in his training, namely, that he should talk to the suspect in an attempt to obtain his cooperation? The video shows this type of intervention, which involved the repeated use of a CED, followed by the individual’s compliance and handcuffing without resistance.

It is entirely consistent with the methods used by Officer Bordeleau. It also appears in the videos shown. Why was Officer Bordeleau not judged favourably, in light of this video? [ 77 ] Should the Committee have commented on the video in the file entitled “drugs” in which an individual in a cell, in a very agitated and violent state, attempts to attack police officers, who, after administering a CED discharge, immediately obtain the individual’s cooperation?

We believe so, because this video provides an example of an individual exhibiting the signs of ED restored to a normal and peaceful state after only one CED discharge. The Committee should have explained why it set this evidence aside, especially considering that Mr. Bordeleau indicated in his testimony that he remembered this video and hoped to obtain the suspect’s cooperation in the same manner. [ translation ] C-2009-3555 & AL YANNICK BORDELEAU 15-06-2011 C.-ex. Mtre Mathieu Page 16 17 Q. The electrical discharge, how 18 did it cause the subject to react?

What were you, 19 with your own eyes, able to note in regard to the subject? Let’s 20 take the case of Mr. Registre. What 21 reaction did it cause in him? 22 A. As I said already, 23 muscular contractions. He no longer had control over his muscles

24 and he was under the effect of N.M.I. 25 Q. So, I understand that while there is C-2009-3555 & AL YANNICK BORDELEAU 15-06-2011 C.-ex. Mtre Mathieu Page 17 1 neuromuscular contraction, there is actually 2 more resistance. If you want to 3 get the individual’s arm, the arm is like fixed in a 4 position more ... 5 A. It is contracted. 6 Q. ... it is contracted. So the subject, even 7deliberately, could not relax his or her 8 arm? 9 A. No. 10 Q. So during N.M.I., actually, any type of 11 intervention to take hold of the hands or the 12 arms of a subject, are somewhat illusory 13 during these five seconds? 14 A.

It’s difficult, because it is contracted. 15 Q. Now, you said there were also other 16 consequences. The individual becomes, I imagine, a 17 bit dazed following the discharge. In any case, in 18 what you were taught, that is one of the 19 consequences? 20 A. As I explained, the first time it was used, 21 it was obvious. At no time did Mr. Registre, 22 become dazed. Even after his accident and between 23 each discharge, we ... I never saw what 24 I saw during my first use of a Taser on 25 a suicidal individual. C-2009-3555 & AL YANNICK BORDELEAU 15-06-2011 C.-ex.

Mtre Mathieu Page 18 1 I have never seen, as I told you,

2 what I saw the first time with Mr. 3 Registre. 4 Q. With Mr. Registre, his faculties were not 5 impaired; is that what you’re saying? 6 A. No. What I’m saying is that there was nothing 7 allowing me to believe that he was 8 compliant, that he didn’t want ... how can I say 9 this? 10 Q. He wasn’t giving in to you? 11 A. He wasn’t an individual who would all of a sudden 12 decide to cooperate like the first time 13 I used it. The first time, it was 14 immediate. The individual wasn’t asking for more. He 15 wanted it to stop.

He obeyed all my 16 orders after that and we were able to handcuff him 17 and have him transported by Urgences-santé ambulance. That 18 is not what we saw with Mr. 19 Registre. Between each sequence, when we would 20 assess everything, well, there was nothing allowing us 21 to believe that he was complying with my orders 22 23 Mtre DUPRAS: 24 Just to be clear, when you speak of the 25 first time, just because ... C-2009-3555 & AL YANNICK BORDELEAU 15-06-2011 C.-ex. Mtre Mathieu Page 19 1 Mtre MATHIEU: 2 Ok, I’ll come back to this. 3 4 Mtre DUPRAS: 5 … yes. 6 7 Mtre MATHIEU: 8 I’m going to ask him to specify. 9

10 Mtre DUPRAS: 11 Very well. 12 13 Mtre MATHIEU: 14 Q. So, Mr. Registre, I understand that he is the 15 second person on whom you have used a 16 C.E.D. The first was the person you said 17 had a knife? 18 R. Yes, that’s right. 19 Q. That he dropped? 20 A. The suidicial individual. 21 Q. And that suicidal individual, was 22 it someone suffering from 23 excited delirium, according to the

definitions of which you were 24 aware at the time? 25 A. No. C-2009-3555 & AL YANNICK BORDELEAU 15-06-2011 C.-ex. Mtre Mathieu Page 20 Q. Was it someone who faculties were 2 impaired by alcohol or drugs? 3 A. Unknown. 4 Q. So, it was not exactly the same state as 5 Mr. Registre. We can’t exactly draw 6 a parallel between the two. They are two 7 difference pre-existing conditions? 8 A. Yes. 9 Q. We understand each other? Ok. When you initially went to intervene 10 with Mr.

Registre, you and your 11 colleague, I understand that you 12 both noticed that ... in any case, Mr. 13 Thibert, at least, the first, that he seemed to 14 have impaired faculties? 15 A. Uh-huh! 16 Q. Yes or no or something else?

17 A. It’s Mr. Thibert who answered that 18 question. 19 Q. But you, you noticed this state? 20 A. As I ... well ... 21 Q. Quickly? 22 A. ... yes, quickly, a crazy state. 23 Q. So, it was certain that this person seemed 24 to have a mental illness or was 25 intoxicated by something? C-2009-3555 & AL YANNICK BORDELEAU 15-06-2011 C.-ex. Mtre Mathieu Page 21 A. That’s what it seemed like. 2 Q. One or the other? 3 A. Yes. 4 Q. Or both? Could that have been possible? 5 A. Yes, it could have. 6 Q. Ok.

So, we understand that if the person’s 7 faculties are impaired in the sense of one or the other of these 8 hypotheses, I understand that this person’s 9 judgement is not exactly that of a 10 person who can be described as normal and that his 11 perception of reality is also different? 12 A. Surely. 13 Q. It was the objective of the police officers’ intervention in this 14 case, because his conduct was, to say the least, 15 erratic and dangerous? 16 A. Yes. 17 Q. Ok. Were you surprised by his 18 reaction after the first Taser shot, given 19 his apparent state of intoxication, or delirium in 20 any case? 21 A.

Yes. 22 Q. Why? 23 A. Because in the training, two videos, the two

24 videos ... two of the videos that you have already 25 watched, the one of the individual in the cell C-2009-3555 & AL YANNICK BORDELEAU 15-06-2011 C.-ex. Mtre Mathieu Page 22 1 talking, I think, about... he is intoxicated by drugs 2 and then immediately after the first Taser 3 discharge, he apologizes. He is cooperative. He 4 wonders what happened. He is really 5 cooperative all of a sudden. He helps the ... you 6 know, it’s not that he helps them, but he lets himself be controlled. 7 So ... that, that is a case of someone 8 intoxicated by drugs, who comes to his senses 9 and who apologizes and complies.

There is 10 the second video, which is Traffic Stop, that I 11 also have in mind and that shows an individual who 12 is under the influence of alcohol, it seems, because 13 that’s why the police officer tried to intercept 14 and arrest the individual. After five 15 Taser discharges, well then, finally, he complies. He 16 doesn’t want any more, and he complies. So ... 17 Q. But it took five shots? 18 A. Yes, but he complied. 19 Q. After five? 20 A. After five. 21 Q. After one, he didn’t comply? 22 A. No. 23 Q. Which led to the second, the third, the 24 fourth, and finally the fifth? 25 A. That’s right.

C-2009-3555 & AL YANNICK BORDELEAU 15-06-2011 C.-ex. Mtre Mathieu Page 23

1 Q. So you knew it was possible that an 2 individual, after the first shot, might not comply, 3 according to your training? 4 A. Yes, but during the training, they showed us a video 5 in which there were five, but most videos 6 show one intervention or one application of the 7 Taser. That’s why in the case of 8 Registre ... of Mr. Registre, to see him right 9 away after the five seconds push himself up, bend 10 his knee and be ready to go, yes, that 11 surprised me. C-2009-3555 & AL YANNICK BORDELEAU 15-06-2011 C.-ex. Mtre Mathieu Page 61 7 Q.

Why didn’t you go give 8 backup ... give your colleague a hand and 9 seize the individual’s legs and immobilize the legs, the 10 ankles of the individual? 11 A. Because, once again, the Taser operator is 12 taught to wait for compliance, not to 13 have ... what you have to understand, it’s that these 14 individuals are stronger than 15 two sober men and they try to 16 get control as best they can. 17 They are very strong, and going hand 18 to hand, if I can put it that way, I’m scared of 19 losing. I’m scared to lose, because at some 20 point, you run out of breath.

Fighting on the ground for one 21 minute, two minutes, it’s extremely exhausting, 22 and against someone who has 23 infinite power, well, there is a danger of 24 losing what we are in trying to do. 25 C-2009-3555 & AL YANNICK BORDELEAU 15-06-2011 C.-ex. Mtre Mathieu

Page 62 1 So, by having control at the end of the Taser, well, 2 for sure I’m trying to ensure that ... as I 3 told you, the objective is compliance.

I’m 4 waiting for that compliance, and I’m hoping for it. 5 And the fifth shot, for me, is not so 6 exceptional, because it can happen, 7 as we saw, at the end of the fifth shot, and 8 that’s what I’m waiting for and that’s what I’m hoping for. [ 78 ] Our objective is not to convince ourselves that one method of intervention is better than another, nor to interpret the rules of ethics. [ 79 ] The role of the Committee as a specialized ethics tribunal gives it full latitude to draw reasonable conclusions from the evidence submitted. [ 80 ] But, to support an argument of abuse of authority, it had to base itself on factual and expert evidence.

If it dismissed some evidence that was both admissible and essential for a better understanding of the matter while retaining other evidence, it needed to provide reasons for its choice. [ 81 ] The main element emphasized by the Committee was the analysis of the appellants’ conduct in light of the training they had received.

Its analysis is based on fragmented pieces of evidence that seem to have been chosen arbitrarily, and it excludes relevant evidence confirming the theory of the defence without providing any reason for doing so. [ 82 ] On the essential issues, this analysis is flawed because of anachronisms with respect to the methods and guidelines that the appellants were taught. This error is the central point of the decision and is therefore fatal because it disqualifies the Committee’s conclusion as one of the possible outcomes.

The specific ground of not having followed the methodology shown in the “Toronto” videos is a clear error rendering the judgment impossible to justify because the choice of this methodolody by the Committee is fundamentally arbitrary. On the conclusion regarding the second to sixth discharges (ground n): [ 83 ] Officer Thibert was acquitted on the first count, the use of excessive force: [translation] [121] The Committee is of the view that Officer Thibert’s conduct toward Mr.

Registre was intended to control him, considering his level of resistance, and was not excessive or exaggerated in the circumstances. [122] For these reasons, the Committee concludes that Officer Thibert did not derogate from

section 6 of the Code in regard to Mr. Registre and did not use greater force necessary to accomplish what was permitted. [ 84 ] Moreover, the fault that Officer Bordeleau was found to have committed is that he continued to use the CED instead of his own physical force after the first CED shot. This criticism is related to what the Committee perceived to be the use of too little physical force by Officer Thibert: [ translation] [107] With respect to Officer Thibert, the Committee is troubled by the slowness in which he approached Mr. Registre and the ineffective methods he used to control him on the ground.

He approached him only during the second discharge, putting pressure on his left arm and pressing his knee on his back only after the fourth discharge. [ 85 ] The words [ translation] “ the Committee is troubled” are not convincing in regard to the standard of proof. What's more, paragraph 107 is inconsistent with the facts as reported by Committee itself: [ translation ] [18] Officer Bordeleau took his CED, pointed it in Mr. Registre’s direction, and aimed at his chest. Mr. Registre exited the car to run away. Officer Bordeleau fired his CED and hit Mr. Registre.

The neuromuscular neutralisation was successful, and Mr. Registre fell face down on the ground with his hands underneath him. Officer Bordeleau yelled at him to show his hands. [19] By the time the effect of the electrical discharge had worn off, Mr. Registre had his hands on the ground, and his knee was bent under his stomach as if he was going to get up and start running like a sprinter.

[20] Officer Bordeleau used the CED a second time on Mr. Registre, and he fell flat on his stomach with his arms underneath him. [21] During the second effect of the CED, Officer Thibert approached Mr. Registre and exerted pressure on his left arm to ensure that could not flee. [22] Officer Thibert noted the strength of Mr. Registre, who was moving despite the weight of the police officer on his arm. Mr. Registre was trying to find his seatbelt with his right hand. [23] Officer Thibert did not know whether Mr. Registre had a knife or a weapon on him. The officer shot Mr.

Registre in the arm, but he was very resistant. [24] A third discharge was administrated by Officer Bordeleau. Officer Thibert slid his hand under Mr. Registre to reach his left wrist. Officer Bordeleau continued to yell that he wanted to see his hands. Mr. Registre’s right hand was still reaching for the middle of his seatbelt. [25] Officer Bordeleau administered a fourth discharge. Officer Thibert again pulled on Mr. Registre’s left arm and held his elbow in a joint hold. He managed to pull his wrist and elbow behind his back. The officer blocked Mr.

Registre’s rotational axis by placing his knee on his lower back. Mr. Registre was still not complying with Officer Bordeleau’s orders. [26] Officer Bordeleau administered a fifth discharge. He approached Mr. Registre and placed one knee on the ground next to him. He placed the CED on the ground next to Mr. Registre’s right knee. He pulled on Mr. Registre’s right arm to access it, but he was unable to do so, given Mr. Registre’s resistance. [27] Officer Bordeleau administered a sixth CED discharge on Mr. Registre. He managed to access his hand and bring it behind his back to handcuff him. Mr.

Registre was placed on his side and Officer Thibert performed a

summary search. [ 86 ] It is worth pointing out the appellants’ queries in the factum they submitted to the Court on the Committee’s process in this regard: [ translation ]

(34) Even if the requirements as taught by the SPVM to the appellants would have justified their waiting for Mr. Registre to comply and stop resisting before physically intervening with him, that is not what the appellants chose to do They intervened on the ground, at different times, as of the second pulse cycle. The Committee, however, chose to note their inaction, their slowness, and the ineffectiveness of the methods used to control Mr. Registre on the ground, whereas once again, the evidence reveals that the situation was in actual fact different.

First of all, the appellant Thibert, after the first few charges administered, observed the reaction of Mr. Registre, who was rising to a sprinter’s position to run away and, during the second discharge, approached Mr. Registre and put all the pressure of his body onto his left arm [ translation] “ precisely to prevent” him from running away. Is placing all of one’s weight on the arm of the person to be controlled an ineffective method? What did the Committee expect? That they should have struck Mr.

Registre despite the fact that all theories of intervention with CEDs seek precisely to avoid the use of force likely to cause injuries? [ 87 ] After concluding that Officer Thibert’s intervention was [ translation] “ troubling”, the Committee made an unexplainable leap of logic: [ translation] [108] The Committee notes the following passage from page 104 of the training course [20] given by Officer Maheux: [ translation ] While there is no preset limit as to the duration of the discharge or the number of discharge cycles authorized, the user must limit the number of cycles to that which is reasonably necessary to safely approach and handcuff the person. [109] For these reasons, the Committee is of the view that the second, third, fourth, fifth, and sixth CED discharges were excessive and unreasonable.

The Committee is of the view that in conducting himself in this manner, Officer Bordeleau’s actions constituted an abuse of authority according to the criteria set out in the case law [21] . [ 88 ] Even if the major premise based on the trainer’s testimony is correct, the Committee’s conclusion is not. The premise is that the number of cycles must be limited to what is necessary.

The conclusion is that this was not done, but the minor premise – i.e. the illustration of why the police officers’ conduct must be considered to be more than what was necessary – is missing. [ 89 ] The syllogism is faulty as it lacks a connection between the major premise and the conclusion. [ 90 ] It can be characterized as a tautology: the conduct is excessive because it excessive. [ 91 ] Absurdly, the use of force by CED is excessive because greater direct physical force should have been used earlier. [ 92 ] The Committee seems to have accepted from the expert Poulin’s testimony that a person exhibiting the symptoms of ED cannot understand a police officer’s orders: [ translation ] [106] It is worth repeating the expert Poulin’s testimony here that a person exhibiting ED symptoms cannot understand a police officer’s orders.

[ 93 ] This testimony needed to be put in context. The witness Poulin explained that the training given before 2008 did not take this factor into consideration and that, although the training was modified in 2008, this factor was not referred to in the training given to the appellants. [ 94 ] To put this observation in context, certain passages of expert Bruno Poulin’s examination merit a second look: [ 95 ] In his testimony in chief, he stated the following: [ translation ] C-2009-3555 3556-3 BRUNO POULIN 21-06-2011 Ex.

Mtre Dupras Page 68 1 … — the training, still in 2 2005, 2006 — the training that was given at 3 the school ... sorry, by the SPVM to the eventual 4 users. You are familiar with it. You read the 5 testimony of Mr. Maheux. You have seen 6 exhibit C-14 ... 7 A. Yes. 8 Q. ... the PowerPoint presentation, that you 9 acknowledged as the training that was 10 given at the time. Right? 11 A. Yes. 12 Q. Good. There are a few themes that I would like to 13 go over with you in regard to that training.

These are 14 the characteristics that I have identified and that 15 I would like to go over, in the next few minutes, 16 with you. So, we see that in this training, 17 the training followed by 18 officers Thibert and Bordeleau, we see that there is 19 no limit to the number of cycles that can be 20 administered on an individual and that this is left to 21 the judgement of the police officer. You read or saw that? 22 A. Yes. 23 Q. Good. So, was that the state of the 24 training at the time? 25 A. Yes. C-2009-3555 3556-3 BRUNO POULIN 21-06-2011 Ex. Mtre Dupras

Page 69 1 Q. Yes? Good. Is that still the state of 2 the training, that the number of 3 cycles to administer is left to the judgement of the police officer? 4 A. Yes, but we try as much as possible to avoid the 5 repetition of cycles. To avoid the repetition of 6 cycles, you absolutely cannot ... not 7 work with coercion by pain. Because 8 in the beginning, the tendency was to use the 9 probe mode, to let the person fall, not 10 to approach the person, to ... 11 Q. When you say the tendency, that was what was taught 12 in general? 13 A.

Yes, yes, what was generally taught at the time. 14 To give orders to the person to put 15 their arms behind their back and to simply handcuff 16 them. That was what was taught. Why 17 was that taught? Well, for one, for the 18 security of the police officer, not to approach the 19 person so long as they were not complying, 20 not neutralized.

Second, we 21 thought that, so long as the person was in 22 neuromuscular neutralization, that bringing their arms behind their back 23 would cause injury to the 24 shoulders and elbows; we realized, through 25 practise and experience, that this was not C-2009-3555 3556-3 BRUNO POULIN 21-06-2011 Ex. Mtre Dupras Page 70 1 true. Even if the person is in NMI and has fallen 2 on the ground and is having muscle contractions, 3 we can bring their hands behind their 4 back and handcuff them. 5 6 So, you have to use this window of opportunity

7 to quickly handcuff the person and avoid 8 the cycles. Because you need to 9 understand that in the case of intoxication from drug use or 10 of delirium or someone who has a high tolerance 11 to pain, it will work, the 12 person will fall on the ground, but they won’t feel 13 pain. 14 15 So, as soon as the cycle is over, the person 16 will get back up, and plus, if the person, if 17 they ... are in an altered state of consciousness, if they are not 18 all there, well, they are not going to understand the 19 police officer’s orders, which will lead to 20 repeated cycles. 21 Q. But if we go back to 2006 ... 22 A.

Yes. 23 Q. ... in 2006, it’s true that when the police officers 24 were ... 25 A. It was ... C-2009-3555 3556-3 BRUNO POULIN 21-06-2011 Ex. Mtre Dupras Page 71 1 Q. ... were trained, it was ... 2 A. Yes. 3 Q. ... it was ... the training that was given, 4 was that there was no limit to the number of 5 cycles. Is that right? 6 A. Exactly. And it was recommended to use that 7 on a person in a state of delirium. 8 Q. Ok. As of when was this 9 belief modified? 10 A. Well, once the police practice was 11 set out and once it started to be taught 12 at the police school. 13 Q. In what year was that?

14 A. In 2008. 15 Q. In 2008? 16 A. Yes. 17 Q. Ok. So, until 2008, what was prevalently 18 taught was that there was no 19 limit to the number of cycles to administer to a 20 person? It was left to the judgement of the police officer? 21 A. Yes. 22 Q. Good. Ok. Am I correct in 23 stating that also until 2008, in the 24 training that was given by the SPVM 25 specifically, there was no period of time C-2009-3555 3556-3 BRUNO POULIN 21-06-2011 Ex. Mtre Dupras Page 72 1 suggested between two cycles? 2 A. No.

Well, it was, ... the time, it was really to 3 give orders, to allow a certain amount of 4 reaction time for the person to understand the 5 orders before administering a second cycle. 6 Q. But you don’t have ... you didn’t give ... 7 A. No, there were no seconds, there were no 8 minutes, there were no ... 9 Q. That still doesn’t exist? 10 A. No, no. 11 Q. In practice, we don’t ... even with the adoption in 12 2008 of the police practice, there is still no 13 suggested period of time, of waiting time between 14 the administration of two cycles ... 15 A. No. 16 Q. ... a person? Is that it? 17 A. No. 18 Q. No? Ok.

Am I correct in stating that 19 also in 2006, when these men were 20 trained, you didn’t give ... there was no

21 set limit either for the duration of the 22 discharge? Is that right? Of the cycles. 23 A. The duration ... 24 Q. Let me reformulate that. 25 A. Well, the duration, if I remember correctly, it was C-2009-3555 3556-3 BRUNO POULIN 21-06-2011 Ex. Mtre Dupras Page 73 1 not to go over between fifteen and twenty seconds. 2 Q. Between fifteen and twenty seconds? 3 A. Yes. 4 Q.

Ok, now, am I correct in 5 also stating that this is what was taught, 6 until 2008, finally, until the 7 police practice came into effect, it was an 8 instruction guided by, how can I say this, 9 submission; they were taught to use the 10 conducted energy device until the person 11 complied? Is that correct? 12 A. That is correct. 13 Q. It was pain compliance? 14 A. Yes. 15 Q. That was the theory? 16 A. Yes. 17 Q. Ok. 18 A. Just like pepper spray.

When a 19 person is sprayed with pepper spray, we 20 wait for the product to take effect, and what is taught is 21 not to approach the person, but to 22 give orders from a distance to avoid 23 physical contact as much as possible. The same 24 theory was applied with the Taser as with 25 pepper spray. C-2009-3555 3556-3 BRUNO POULIN

21-06-2011 Ex. Mtre Dupras Page 74 1 Q. That is, not to approach ... repeat 2 that. 3 A. Yes. 4 Q. Not to approach the individual? 5 A. The individual, to give clear orders. For 6 example, an individual subjected to 7 pepper spray... 8 Q. Yes. 9 A. ... it’s to give clear orders, such as: on the 10 ground, on your knees, on your stomach, or whatever, 11 depending on the circumstances, hands behind 12 your back, we’re going to handcuff you and decontaminate you. 13 It’s going to be ok, listen to us. It’s the same 14 principle... 15 Q. Ok. 16 A. ... as OC, pepper spray, that was 17 transferred to the Taser. 18 Q.

So they taught that energy discharges should be given 19 until the person complied and it was possible 20 to approach the individual who was now compliant? 21 A. Exactly. 22 Q. Good. Tell me, and you mentioned this earlier, 23 in the training that was given, 24 specifically in 2005, 2006, am I correct 25 in stating that ... because I am noting C-2009-3555 3556-3 BRUNO POULIN 21-06-2011 Ex. Mtre Dupras Page 75 1 that you said that ... there was a tendency to favour the 2 use of the conducted energy device in the case of 3 excited delirium. What can you tell us 4 about that? 5 A.

A person in a state of excited delirium is a

6 person with exceptional physical strength, 7 who does not feel pain, who is in an 8 altered state of consciousness, who is at risk of quick death or of ... 9 they are at risk of sudden, inexplicable death, 10 and that, it’s a medical emergency.

It can 11 be ... the faster this 12 person can be subdued, the faster 13 they will be brought to the hospital and the 14 faster they will receive treatment. 15 16 So, that’s why the Taser was prioritized at 17 the time for ... in the case of delirium. 18 It was to quickly gain control over these persons, 19 so that they didn’t exert any significant physical effort 20 because significant physical effort, 21 is the only, how can I say this, determinant 22 that we can control.

We can’t control whether the person 23 has taken drugs, we can’t control whether they 24 have been drinking, we can’t control their 25 reaction, but we can control the intervention time C-2009-3555 3556-3 BRUNO POULIN 21-06-2011 Ex. Mtre Dupras Page 76 1 of the technique. 2 3 That was the rationale at the time. So, 4 instead of fighting for ten minutes, fifteen minutes, 5 five minutes on the ground, that we see in the case of 6 delirium in other cases, the rationale was 7 to subdue the person very quickly to be able to 8 bring them to the hospital very quickly.

So that’s 9 why we favoured moving to the use of the Taser 10 quickly. 11 Q. A bit like in our circumstances? 12 A. Exactly. 13 Q. Very well. I want to add the following question. I

14 understand from one of the previous answers that you 15 gave the Committee that this notion, this concept of 16 pain compliance, was specifically 17 recommended by the company. Is that right? 18 A. Yes. 19 Q. All the concepts that we just reviewed, you know, 20 compliance, the indefinite number of discharges 21 that can be administered on an individual, was 22 that the instruction generally prevailing 23 in police institutions of 24 North America in 2005, 2006? 25 A. Yes, but it was also not to exaggerate, to C-2009-3555 3556-3 BRUNO POULIN 21-06-2011 Ex.

Mtre Dupras Page 77 1 give ... each discharge, it had to be 2 justified. 3 Q. Yes. But this was left to the police officer’s judgement? 4 A. Exactly, yes. 5 Q. Ok. Good. Now, today, do 6 I ... is there a ... is there 7 today ... we spoke about the training that 8 was given in 2005, 2006, when these men 9 were trained in 2006, until about 2008, when 10 the new instructions, set out in the 11 Police Practices Guide, finally came into effect.

Is 12 there, today, as we speak, after these 13 amendments, is there now a 14 preset limit for the duration of discharges 15 or the number of cycles that may be administered 16 on an individual? 17 A. Well, in the policy, it is still to avoid 18 multiple discharges. You have to understand, it’s 19 that physiologically, we don’t know ... we know 20 that there are short five-second discharges 21 and some of ... example, the literature says from three to

22 six is not supposed to have 23 significant physiological effects on the human body. 24 25 But it hasn’t been tested further, C-2009-3555 3556-3 BRUNO POULIN 21-06-2011 Ex. Mtre Dupras Page 78 1 for example, forty-five seconds, a minute, a minute and 2 a half. The literature is just coming out on 3 the physiological effects of a prolonged discharge 4 on a human being. So, that’s why there are 5 still warnings, avoid multiple 6 discharges. 7 Q. But I understand, but multiple discharges, 8 are still left up to the police officer’s discretion, even 9 still today? 10 A. Exactly, exactly.

There is no prohibition against 11 going over, for example, six discharges, three 12 discharges. It will always depend on all 13 the circumstances. We can’t prohibit, I 14 don’t know, in a situation that ... well, 15 extreme, that we once had, a pregnant women; people say 16 that they shouldn’t be used on pregnant 17 women, but once there was a pregnant 18 woman in delirium, who was 19 seven or eight months pregnant and wanted to take a 20 knife to her stomach.

She didn’t want the baby any more. 21 22 So the police officer used a Taser on 23 that woman, and imagine if it doesn’t work the 24 first time, the second, the third, 25 what’s worse? C-2009-3555 3556-3 BRUNO POULIN

21-06-2011 Ex. Mtre Dupras Page 79 1 Q. Ok. Ok. So, I understand, first, that still 2 today ... 3 A. It depends on all of the circumstances. 4 Q. ... it’s still left to the assessment ... 5 A. Yes. 6 Q. ... of the police officer? 7 A. Yes. [ 96 ] His testimony was the same in cross-examination: [ translation ] C-2009-3555 3556-3 BRUNO POULIN 21-06-2011 C.-ex. Mtre Mathieu Page 93 18 Q.

In the training course that was given to you 19 and then to the SPVM police officers, what 20 was said about the state of a person suffering from 21 excited delirium or intoxication by drugs or 22 whose faculties were impaired by other 23 substances? What was addressed? 24 A. That these people do not feel pain 25 generally. C-2009-3555 3556-3 BRUNO POULIN 21-06-2011 C.-ex. Mtre Mathieu Page 94 1 Q. What were you told to do in such cases? 2 A. You’re referring to what? You’re referring to ... 3 Q. Well, in the course on the Taser ... 4 A. Yes. 5 Q. ... when we talk ... what is taught? 6 What is said?

They don’t feel 7 pain. Ok.

8 A. They don’t feel pain, but the Taser, what 9 was said at that time, was that it would 10 still work because we would bring the person 11 to the ground and they would end up being restrained. That’s 12 what was said at that time. Now, we 13 know that this isn’t true. 14 Q. But why, if the person is in an impaired 15 state, because of either delirium or 16 intoxication, do we give orders to 17 this person, since you said in your 18 testimony earlier that the person was in an 19 altered state of consciousness? 20 A. Absolutely. It isn’t infallible logic, 21 what was taught at that time.

It 22 isn’t ... that’s why we changed it. It doesn’t 23 work. That’s why ... 24 Q. It goes against... 25 A. It’s not only in Quebec that this happened. C-2009-3555 3556-3 BRUNO POULIN 21-06-2011 C.-ex. Mtre Mathieu Page 95 1 The high number of Taser repetitions was happening 2 throughout America, and at one point, we 3 said, this doesn’t make sense, 4 this way of doing things. That’s why we 5 changed the way of doing things, to go directly to the 6 person, grab their arms and take advantage of the 7 window of opportunity to subdue them.

While 8 the person is on the ground trembling, that’s the 9 window of opportunity that you have to take to 10 grab their arms and bring them behind their back. You 11 are right. I don’t disagree with you. 12 Q. But isn’t that during the time when there are 13 intense muscular contractions?

14 A. Yes. It’s ... 15 Q. It must be more complicated? 16 A. We thought it was more complicated 17 because we tried it and we were unable to 18 move, but in fact, it’s quite easy to 19 move the person. 20 Q. Move the person? 21 A. Their arms, rather, to move their limbs. Their 22 parts. Very easy ... it’s easy. It’s done 23 and there is no risk of injury. 24 Q. But why did you say that when you yourself 25 tried it, you or someone else in the C-2009-3555 3556-3 BRUNO POULIN 21-06-2011 C.-ex.

Mtre Mathieu Page 96 1 training course, there were intense 2 muscular contractions, and you said that at first, 3 it was true, it was thought that there was no way 4 to shift or move the arms over. Was 5 this tried? Did people try to 6 bring the arms back while... 7 A. No, not at the time. Not at the time. 8 Q. In what year did that time end? 9 A. Well, I would say that it ended in the years ... 10 when we starting teaching at the police 11 school in 2008. We formed a committee with everyone, 12 all the instructors and we came up with 13 another way of proceeding. 14 Q.

When you said a few moments ago that, yes, 15 it’s true, we realized that it 16 wasn’t working, what caused people 17 to realize, you, the police officers, Taser 18 International realized that it wasn’t working, 19 that there were problems in regard to 20 interventions involving the Taser? 21 A. Well, there were repetitive cycles, for example,

22 five, six cycles, even more. In certain cases 23 in the United-States, there were 12, 15 cycles. We became 24 well aware that it wasn’t working, but on a 25 normal person, it worked every time. On C-2009-3555 3556-3 BRUNO POULIN 21-06-2011 C.-ex. Mtre Mathieu Page 97 1 someone who was not intoxicated, it worked 2 very well generally. This led us to 3 say, well it doesn’t work. 4 Q. It doesn’t work on a person who is suffering from 5 delirium or who is intoxicated? 6 A.

Yes, who has, that’s it, an altered state of consciousness. [ 97 ] According to Poulin, the following elements, which the Committee found established the appellants’ fault, were part of the training given after 2008: - multiple cycles should be avoided as much as possible; - pain compliance should no longer be used on a person suffering from ED, who does not feel pain; - a person suffering from ED will not understand orders; - it is necessary to seize the window of opportunity created by the muscular contractions to subdue the suspect before his or her strength returns. [ 98 ] One of the cornerstones of the decision at issue is the recognition of the fact that a person suffering from ED will resist despite the pain because the person does not feel it and despite the instructions because the person does not understand them.

Implicitly, in the view of the Committee, the appellant Bordeleau should have been aware of this fact. This is the minor premise that the Committee failed to mention. It is a false premise, resulting in the distortion of the evidence, because the Committee took one part of the testimony out of context and, without saying so and without saying why, rejected the remainder of the testimony. [ 99 ] In any event, even according to the current training, the idea that a person suffering from ED does not understand the instructions is not an absolute concept.

The expert Alan Brave added some nuance, since in his view, in many cases a person suffering from ED will understand and eventually submit. It is therefore always worth doing what Officer Bordeleau did, which was to repeatedly instruct the subject to submit during the use of the CED. [ translation ] C-2009-3555 3556-3 MICHAEL ALAN BRAVE 23-06-2011 C.-ex. Me Mathieu Page 166 22 Q. With those people, if a police officer uses his Taser 23 gun and always... not in a stun mode.

We always 24 talk about the mode that was involved in this case, 25 is there any point to giving order to that person if C-2009-3555 3556-3 MICHAEL ALAN BRAVE

23-06-2011 C.-ex. Me Mathieu Page 167 1 it’s an excited delirium state or mental incapacity? 2 A. Yes. 3 Q. There is? 4 A. I thought my answer was clear. Yes. 5 Q. Well, I thought that his... a person like that would 6 have faculties incapacitated that would not make him 7 think straight or capture the nature of the order 8 and would go on, whatever would be the case, because 9 anyways, they don’t feel the pain? 10 A. That’s totally for the wrong reason.

If you look at 11 these cases and watch the videos, if I order 12 someone, even in one of these states, get down, get 13 down, get down, get down, in some cases, they will 14 get down. Three seconds later, they might drop 15 right back up, but in some cases, they will get 16 down. 17 18 The Pedia (ph) case out of Southern California, 19 which was not even a Taser case, they ordered him 20 off the truck. He did it. They said get down, he 21 did it.

It wasn’t until after that that he went out 22 of control. 23 24 In a lot of these cases, if you give them enough 25 orders you have a chance of creating a window of C-2009-3555 3556-3 MICHAEL ALAN BRAVE 23-06-2011 C.-ex. Me Mathieu Page 168 1 compliance, even though it’s for a very short period 2 of time. So, therefore, should officers continue 3 giving them the commands and the orders? The answer 4 is an absolute yes. 5 Q. And when would these orders be proper to be given

6 when you use a Taser? At what point? In what 7 window of opportunity should it be used? 8 A. Throughout the use. 9 Q. Throughout the? 10 A. Throughout the use. 11 Q. No stoppage time between the use, as it goes on, as 12 it’s being discharged and it could be on a 13 continuous mode? They keep on giving the orders at 14 that time? 15 A. If you’re a person who studies the human brain, you 16 realize there are three major parts, the conscious, 17 the subconscious and the reptilian brain.

What 18 you’re trying to… … [ 100 ] The Committee set this evidence aside and did not explain why it did not nuance the idea expressed as an absolute truth in paragraph 106. [ 101 ] In addition to applying a standard to the appellants that was not part of their training, the Committee rendered a relative concept absolute by taking it out of context. [ 102 ] We are thus in the presence of both types of unreasonable decisions defined in Southam : [6] - an assumption that had no basis in the evidence, or that was contrary to the overwhelming weight of the evidence; and - a contradiction in the premises or an invalid inference. [ 103 ] The Court has reflected upon the dissection metaphor used by the Honourable Madam Justice Danielle Grenier, J.S.C., when she indicates that it is inappropriate to [ translation ] “dissect the Committee’s decision and analyze its every detail” .

In other words, it should not be necessary to go into great detail to verify the decision-making process. Its unreasonable nature should be apparent without requiring a full postmortem examination. [ 104 ] It is with deference that the Court confirms that the Committee had exclusive jurisdiction to analyze the evidence in light of the principles of police ethics. In doing so, however, the Committee needed to provide reasons for its decision that can stand up to a probing examination. It is not a question of performing a dissection. The Court prefers another metaphor.

In the present case, when the decision is subjected to analysis, it self-destructs. The building collapses because it does not have a proper foundation. [ 105 ] The appellants were facing charges under which they could be found guilty of the excessive use of physical force (first count) or the use “ without judgment or care ” (abusive use) of the conducted energy device (CED) (second count). [ 106 ] At the outset of the hearing, the

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