Taser use could put police under fire

June 28, 2008

Tonda MacCharles, Ottawa Bureau, Toronto Star

OTTAWA–Evidence at British Columbia's Taser inquiry may mean police forces across Canada, including the Ontario Provincial Police officers who zapped a suspect in Norfolk County near Simcoe this week, could be slapped with Criminal Code charges and wrongful death lawsuits.

B.C. police complaints commissioner Dirk Ryneveld revealed new information first unearthed by an Ontario consultant that shows most police agencies in Canada are wrongly operating, likely illegally, under the assumption that the Taser is not a "prohibited firearm."

In fact, research by Ottawa-based consultant John Kiedrowski indicates Taser guns are actually explicitly defined in Canadian criminal law as "prohibited firearms" – a designation that brings much stiffer rules around storage, training, certification and usage.

Likewise, any offence with a firearm, such as unauthorized use, would bring harsher mandatory minimum jail penalties.

Kiedrowski, who was unavailable to comment, recently completed an independent report for RCMP Commissioner Bill Elliott on Tasers and the rules governing their use. The RCMP says it cannot release the report because it is not fully translated.

Ryneveld told the inquiry Kiedrowski briefed him on his concerns about Tasers, and Ryneveld said he believes Kiedrowski's concerns warrant a closer look.

Until now, the debate in Canada has centred on whether the Taser is an "intermediate" or "less-than-lethal" weapon, and whether officers are too quick on the draw when faced with a person resisting arrest.

Taser stun guns, or conducted energy weapons, are hand-held devices that can be either fired by pressing the barrel against a suspect and discharging an electrical shock, or fired from a distance, shooting out darts that penetrate clothing and attach to a suspect.

The officer then conducts an electrical charge via the propelled wires to jolt the individual into submission either through pain or muscle incapacitation.

Kiedrowski says the definition of a firearm, in law, means "a barrelled weapon from which any shot, bullet or other projectile can be discharged and that is capable of causing serious bodily injury or death to a person."

Regulations passed in 1998 when the federal Firearms Act came into effect define a "prohibited firearm" as "any firearm capable of discharging a dart or other object carrying an electrical current or substance, including the firearm of the design commonly known as the Taser Public Defender and any variant or modified version of it."

Kiedrowski discovered that provincial policing codes that authorize officers to carry firearms are required to list, by name, the firearms in use. None listed the Taser stun gun – theoretically making any discharge of a Taser, by definition, "unauthorized."

Instead, Tasers are treated as "prohibited weapons" and on the "use of force" spectrum, most police forces in Canada, including the RCMP and the OPP, classified them as "intermediate weapons."

"If this is a prohibited firearm, it must be authorized for use," said Ryneveld.

"And if their paperwork is misclassified as a prohibited weapon, then the restrictions on its use, and the reporting and the training and the certification don't apply to the Taser, whereas perhaps it should."

Ryneveld suggested while many police regulations allow officers to use firearms "for a special purpose," arming officers on general patrol with Tasers would have a hard time qualifying as a "special purpose."

RCMP spokesperson Sgt. Sylvie Tremblay admitted in an interview yesterday the RCMP "has been aware that the CEW (conducted energy weapon) is classified as a prohibited firearm" and has included that recognition in its operational policy. It appears that occurred sometime in 2007.

Tremblay said the RCMP policy recognizes that "carrying the CEW requires the same use and care practices as with all firearms used by the RCMP."

But RCMP public complaints commissioner Paul Kennedy, who last week urged the RCMP to tighten its rules on Taser use, has slammed the force for relaxing its own rules on Tasers.

Kennedy said in an interview yesterday he learned of the new information during his own limited review of RCMP protocols on Tasers, but did not include it in his report last week because it was beyond the scope of his mandate.

Asked what concerns the OPP has about legal implications its officers may face, OPP spokesperson Insp. Dave Ross sent an email to the Star that sidestepped the question.

"The OPP is reviewing the recommendations from the Kennedy report and looks forward to recommendations that may arise from any inquiry to evaluate if any of them will improve the safe and effective use of conducted energy weapons."