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IN THE MATTER OF THE THOMAS R. BRAIDWOOD, Q.C.,
COMMISSIONS OF INQUIRY UNDER THE PUBLIC INQUIRY ACT,
SB.C. 2007, c. 9
Phone: (604) 299-3595; Fax: (604) 299-3545 IN THE MATTER OF THE THOMAS R. BRAIDWOOD, Q.C.,
COMMISSIONS OF INQUIRY UNDER THE PUBLIC INQUIRY ACT,
SB.C. 2007, c. 9
Counsel for B.C. Civil Liberties Association: Counsel for Public Service Alliance ofCanada: Counsel for TASER International, Inc.
don't think we'll be all day, but obviously one Tomorrow we have Mr. Orv Nickel, who is a gentleman who will be giving evidence about use of He is in Quebec tomorrow, so we will have to do his evidence by teleconference in some way.
And unfortunately for the timing, he's only available tomorrow afternoon starting at one tomorrow morning but we'll have to sit tomorrow afternoon, just sit, with your leave of course, as long as it takes to finish his evidence.
Just to give a window to next week, Monday we have Mr. Fredericks, who will be available starting at 10:00 a.m., and that evidence will be led by Mr. Butcher in chief, and if Commission counsel has any questions, we can deal with that indicated to you that he may have some evidence in answer to Mr. Fredericks, and we're awaiting As to the closing argument, it seems that almost everyone is agreeable to starting on June 19th to accommodate a scheduling issue on the 22nd yet, but in all probability what we'd like to do is start the first day of closing argument on the 19th, the Friday, then not sit on the 22nd and then come the 23rd and 24th, just finish.
say, almost everyone is able to accommodate that change but we'll confirm it in the next couple of appreciate your flexibility in our desire to 2Paul JankeIn chief on qualifications by Mr. Vertlieb Now, I notice Mr. Neave is not here and I don't know -- he hasn't told us he was going to the evidence this morning, Mr. Commissioner, and the witness for the morning is Dr. Paul Janke, a Would you state your full name, please.
psychiatrist and well recognized in our medical going to ask that the report, May 6, 2009, with attached curriculum vitae, be the next exhibit.
May 6, 2009, with attached Curriculum Vitae distributed and there's a number of counsel here and all of my colleagues are free to, of course, the proceedings with the medical evidence is Commission counsel will take you through the report in a brief way and then recognizing that others may have questions that will go into more 3Paul JankeIn chief on qualifications by Mr. Vertlieb EXAMINATION IN CHIEF ON QUALIFICATIONS BY MR. VERTLIEB: Briefly tell us your background in medicine, where specialized in the field of psychiatry.
I actually got -- my first post-high school degree was my medical degree and that was at UBC internship at St. Paul's Hospital, after which I was licensed to practise medicine in the Province internal medicine, mostly at St. Paul's Hospital, before entering the psychiatry program.
finished the psychiatry program in June 1987, at which time I became a Fellow of the Royal College of Physicians of Canada, specialty in psychiatry.
Once I was in psychiatry, I always knew I wanted to do forensic psychiatry, so as part of my psychiatry training I did a rotation in forensic psychiatry that, as it turns out, was primarily under the supervision of Dr. O'Shaughnessy at Youth Forensic Psychiatric Services.
Upon getting my fellowship, I entered into private practice, which initially was a mix of general psychiatry and forensic psychiatry, and part time -- or half of my time was spent at Youth Youth Forensic Psychiatric Services until the responsibility for our in-patient assessment unit, our out-patient department, and mental health services in the Youth Custody Centre in South prepare reports for a variety of different bodies.
The civil courts, criminal courts, various I have a small private practice in which I treat patients on an on-going basis.
So you have an extensive and broadly based practice in psychiatry here in our province? 4Paul JankeRuling on qualificationsIn chief by Mr. Vertlieb long time ago and a long way from psychiatry.
Dr. Janke, let's then deal with the assistance you can give to the Commissioner concerning the issue around the word "delirium" and its different Delirium in its simplest definition is a clouding of consciousness that occurs in the context of other physical factors or illnesses.
commonly seen in hospitalized patients who are suffering from a variety of processes.
be related to the medications they're on, may be related to infection, may be related to the withdrawal from substances and the accompanying effects of that on an individual's functioning.
The primary feature of delirium is a clouding of consciousness, in other words, an impairment of the ability to perceive and interact with the A cardinal feature of delirium is that it is of time when an individual may be fully aware of their surroundings and interact appropriately with their surroundings, and other times when the individual is not at all in touch with their surroundings and will be responding totally to internal stimulus, ideas within their head.
So generally it's associated with some kind of So you used the word "infection." have an infection that can be severe enough that the brain just stops working properly; is that a individual has suffered severe injuries and has multiple system failures, liver failure, kidney failure, other kinds of failure that just impair the ability of the brain to function.
We've heard that delirium is really centring Is delirium something that you would have to be a psychiatrist to diagnose or would this be something that a family physician could come in I would expect a family physician who has patients who are in hospital or has elderly patients will come into contact with delirium not infrequently.
It's a common occurrence towards the end of our lives because of multiple system failures and As a psychiatrist, you would deal with it more often perhaps than a family doctor; is that a fair As a general psychiatrist, probably not.
have any kind of a hospital practice or deal with patients in any kind of a custodial type of circumstance, you're going to come into contact with individuals who are both medically ill, severely psychiatrically ill, or have ingested a hospital-based practice, consultation-liaison psychiatrists, deal with delirium on a constant So moving, then, to the issue at hand, namely the -- certainly in the moments before his tasering by the RCMP, let's deal with Mr. Dziekanski's state.
You've covered the documents and materials that You've spoken with no one else about this case? You haven't spoken with any of the witnesses, for example, or any of the parties to the event? Tell us what your conclusion is about Mr.
Dziekanski's state, his cognitive state, at the time he was dealing with the police, and then I'm going to ask you to tell us why you have that Well, at the time Mr. Dziekanski was dealing with the police and for the period of time immediately before it, the part that's captured on what's referred to as the Pritchard videos, Mr.
striking is that whenever there is an opportunity, he interacts with the people around him.
responsive to his environment, responds to directions, and is acting in a way that, in my mind, rules out delirium but certainly indicates that he was in a highly stressed and agitated What is it about the interaction with people and the way he was with others that brings you to rule We see Mr. Dziekanski on several occasions in the videos interacting with other people in the an article lifted up above his arms and people are yelling "No," he puts it down as opposed to carrying on with whatever thought he had in his More importantly, when the police arrive on the scene, he clearly recognizes the police.
calls out "Polizia, polizia" at least once or He appears to follow their directions.
In my mind, that all indicates an operating mind that's interacting with the environment and responding to the environment, in the context, in You have seen Dr. Lu's report that comes to a And you know Dr. Lu to be a well respected works in the -- has worked in consultation- medicine and I know that he has been doing forensic work over the last four or five years that I -- I want to make sure I'm not minimizing, but I think it's been four or five years.
certainly been aware of his reports over the last During these proceedings, a number of times there have been references to the fact that Mr.
Dziekanski appears to have been sweating.
Tell us about your view of that comment and that video it looks like he's sweating and it appears there's been consistent descriptions of him in which human beings may sweat, some of us to a You read the document that was sent to you called "Circumstances," which was a lengthy recitation of events that have taken place here at this inquiry.
And in that is detailed the observations some have made of Mr. Dziekanski from the time he landed in Vancouver and was dealing with Border Services people and his interactions with Customs, opinion about his mental state during his time immediately before the police interaction and that you notice in the other hours that he was in Vancouver that's inconsistent with the opinion have represents an individual who's agitated, opportunity to interact with somebody, he appears surroundings and he responds to direction in a manner that I think would be consistent with his undoubtedly was overtired, hungry, stressed, I just want to have a few terms defined while we have the benefit of your evidence here.
report at page 4, you go through observations one by one, and I'm looking right now, page 4, Tell us what you mean by "moderate to severe What I'm referring to is the fact that Mr.
Dziekanski facially looks like he's agitated.
times he's yelling and gesticulating in what not constantly but almost all the time he's in to as psychomotor behaviour, and because of the You made comments in paragraph 6 of your report about the chairs and the automatic door.
others have watched that video and made comments perspective, namely watching the video and watching Mr. Dziekanski standing there while the Tell the Commissioner your impression, watching him with your trained eye, so to speak, and what you observed and the significance of that.
I saw Mr. Dziekanski standing in the doorway.
appears to be aware that the door is opening and closing behind him but he's focusing on other people or other circumstances at the time.
he's simply -- he's aware of it but ignoring it, which is not quite the same as being unaware of actually interact with him, to know what his degree we're all speculating when we look at the video and say, this is what was going on in his And when you say "We're all speculating," you mean "we" from the standpoint of the medical people? The medical people for sure, and anyone who attempts to interpret what was going on in his It may be self-evident, but just briefly tell us why the diagnosis of delirium would be one where you'd want to have an actual visit or assessment Well, to diagnose delirium, you have to know that the person is not oriented to their environment, that they are not fully aware of where they are, what the time is, what's going on, who the various people are that they're dealing with.
simply not possible in this kind of a video where there's nothing like that kind of interaction, not It's also important in diagnosing delirium to have the opportunity to either assess the person repeatedly - in other words, you get to see them consciousness may vary - or be able to review materials that tell you that the person's consciousness or awareness has varied over time.
So the result of your assessment is that you rule out delirium in this case of Mr. Dziekanski? I think that when I look at the video and when I review the circumstances, which is what I based my opinion on, we have an individual who on repeated occasions interacts appropriately, appears to be and contradict a diagnosis of delirium.
view the video in particular, I see multiple instances where he is interacting with his environment and responding to his environment.
That's not consistent with delirium.
Dr. Janke, my name is Helen Roberts.
counsel for the Government of Canada.
10Paul JankeCross-exam by Ms. Roberts (for Government of Canada) CROSS-EXAMINATION BY MS. ROBERTS ON BEHALF OF THE First, what exactly were you asked to do for the I was asked to review Dr. Lu's report and to offer my opinion with respect to the diagnosis of And were you given any additional information apart from what you've listed on page 1, either in Now, as I read your report, you disagree with sufficiency of the evidence for a diagnosis of And the second is the diagnosis of delirium And he listed a great number of materials that he'd reviewed on pages 2 to 6 of his report? And you'll agree that you didn't have all of that For instance, you had a very abbreviated form of circumstances whereas he had full statements from And in outlining your practice, am I correct in thinking your clinical practice relates to seeing private office forensic practice where I'm doing is with Youth Forensic Psychiatric Services, where I am seeing individuals who've been admitted to the in-patient assessment unit for assessment for court purposes or I'm following people who are in the custody centre for psychiatric needs or I'm seeing people in the out-patient who are being seen for ongoing treatment and/or assessment.
And I think you made the distinction -- you talked 11Paul JankeCross-exam by Ms. Roberts (for Government of Canada) about psychiatrists who practise in a hospital setting probably see more delirium than you do in And would it be fair to assume that you might have more time during an appointment than they might have as they do rounds and have to see a whole much time as you need to make an accurate psychiatrists who practise in a hospital setting are more used to making a quicker diagnosis just because of the time constraints and the nature of That would be true when we compare it to my private office practice but not to my practice in Youth Forensic Psychiatric Services, where I have clinics where I'm seeing six to ten youth over the course of a morning and would have at least the same if not less time than most consultation- liaison psychiatrists would have available.
I take it you don't have any issue with the fact that Dr. Lu would be qualified to diagnose Oh, I would expect a first-year psychiatric resident to be able to diagnose delirium.
psychiatrist to decide whether he or she had sufficient information to make a diagnosis? That's as an individual making a diagnosis.
psychiatry where we're offering independent medical opinion, the standard is expected to be level of investigation and review of material.
access to more material than you did and he evidently felt that the had sufficient information psychiatrists are governed or practise according to the DSM-IV, which is the Diagnostic and Statistical Manual of Mental Disorders? 12Paul JankeCross-exam by Ms. Roberts (for Government of Canada) North American psychiatrists use that to make And you'd be familiar with the diagnosis of delirium as set out in the DSM-IV? And as I understand it, they set out delirium in One is delirium related to a medical condition? Or, sorry, substance addiction or withdrawal? And the last one is referred to as not otherwise conditions that can cause delirium according to the DSM-IV, that would include electrolyte And electrolyte imbalances could be caused by And the medical conditions that can cause delirium And that could include dilated cardiomyopathy? If there is compromised cardiac output, yes.
And then when we deal with the delirium that can And do those substances also include nicotine? I'm not sure that I've ever seen delirium And then as I understand it, the category of 13Paul JankeCross-exam by Ms. Roberts (for Government of Canada) multiple etiology is if there's a number of factors that can contribute to causing delirium in And the category of not otherwise specified.
read -- I'll just read you something from the DSM-IV, under section 780.09, if anybody's This category should be used to diagnose a delirium that does not meet criteria for any of the specific types of delirium described So it's the left-over category, if you will? It's the left-over ones where you don't know the multiple etiologies or you're not sure of them.
But you know the person is delirious.
A clinical presentation of delirium that is there is insufficient evidence to establish a Delirium due to causes not listed in this The example they give is sensory deprivation.
So the DSM itself seems to envisage that you can insufficient evidence to establish a specific So the fact that we can't say with any certainty what the cause of delirium might be in Mr.
Dziekanski, that doesn't prevent -- if the clinical picture fits delirium, that doesn't 14Paul JankeCross-exam by Ms. Roberts (for Government of Canada) prevent a psychiatrist from diagnosing delirium? Have you been provided with Dr. Lu's third report I've only been provided with what's listed.
Dr. Lu has prepared a third report responding in to say we should put it before you, then.
And he addresses your report on page 3 of this new And he says that he's reviewed your May 6th -- pause a minute, Doctor, and maybe you should read I don't believe Dr. Lu's third report has been marked as an exhibit, if that's what you're If you need some time to review it again, let me In the first paragraph he points out that you differ from him in the possibility of a And then he says you dismiss the important finding that Mr. Dziekanski was hyperventilating.
I believe that should say "breaths." -- per minute is extremely difficult to self- sustain and is almost always a sign of some Is that a finding that's relevant to a diagnosis 15Paul JankeCross-exam by Ms. Roberts (for Government of Canada) And in the second paragraph, he talks about withdrawal, dehydration and delirium can have significant fluid imbalance that oral fluid and a few glasses of water simply will not I think he's differing from you as to whether Mr. Dziekanski might have been suffering from Well, he's said three different things.
agree with him -- saying someone's in potential alcohol withdrawal gives us no information at all.
If we say a person in alcohol withdrawal will have a fluid imbalance, he's entirely correct.
need to rehydrate those individuals and you need to do it in a careful, controlled fashion.
With dehydration -- well, I may be dehydrated if I'm on the stand for three hours and don't have is significant or serious dehydration.
would agree with him that a few glasses of water would not be sufficient to deal with someone who's And finally, delirium is, as I think we've already established, a multi-factorial state with multiple different causes, all of which would likely require the use of intravenous fluid to circular logic in the sense that if he assumes there's dehydration -- delirium, then yes, these delirium and we need to address his state, then I Doctor, you unfortunately have not had the benefit of seeing the medical records from Poland or the -- a bit of background that we've heard.
I've seen some medical records from Poland.
16Paul JankeCross-exam by Ms. Roberts (for Government of Canada) You've seen the Immigration Canada form.
hadn't slept for a couple of nights prior to his That he had been smoking up till two days before That he had a fear of flying to the extent where he was clinging to a radiator and didn't want to go to the airport and also vomited several times You've seen Dr. Lee's report so you know that he is of the view that Mr. Dziekanski suffered from We've also had evidence, and it's in Dr. Lee's report, that there were no stomach contents, and according to Dr. Lee, that suggests he hadn't taken any food for a significant period, and I can't remember if it's 28 to 48 hours or something I can't recall either but I do recall that.
We have some evidence that you may not have been provided in terms of his lack of sleep, his possible withdrawal from alcohol and nicotine, hadn't eaten well for a couple of days.
he was found with the airline breakfast still in evidence than perhaps you had to work with.
I'm not sure that I was unaware of much -- I believe I was aware of much of that information.
What I was going to say was, could all those factors be interpreted in the way that Dr. Lu has interpreted them, to say that he was possibly withdrawing from alcohol and was dehydrated? Yes, they could be interpreted that way.
17Paul JankeCross-exam by Ms. Roberts (for Government of Canada) I take it it's not uncommon for psychiatrists to reach different conclusions about patients? Particularly in medical-legal settings.
On page 6 of your report, sir, at the top.
In the first full sentence, "It would be." It would be my considered psychiatric opinion that Mr. Pritchard's video of Mr. Dziekanski does not demonstrate significant signs or You use the words "significant signs or symptoms Given that delirium is a state of agitation, usually with a state of -- it can vary from either being somnolent or highly agitated, he certainly showed signs or symptoms that could have been Whether or not he met the official diagnosis of delirium, I take it your evidence is he was highly And would you agree that's abnormal behaviour? -- and that he was nervous and upset.
airport people have testified that they've not abnormal for a tired, stressed passenger, if you I -- if they haven't observed it, then I can't And in that situation it was appropriate for people to call the police to deal with Mr.
The problem with that question is that we're talking about a long period of time in which 18Paul JankeCross-exam by Ms. Roberts (for Government of Canada)Cross-exam by Mr. Hira (for Cst. Kwesi Millington) me was it appropriate to call at the time of the Pritchard video, or was it appropriate to -- would it have been appropriate to call two hours, four hours, six hours, eight hours, ten hours, twelve behaviour in the later stages before the police arrive, in other words when he's banging on the glass, when he's yelling, swearing, destroying Yes, I think that was appropriate to get people who would be trained in dealing with that situation in an appropriate fashion.
And once the police were called, it would be their I would expect it to be their duty, and it's been my experience that they make it their duty to deal Doctor, my name is Ravi Hira and I represent CROSS-EXAMINATION BY MR. HIRA ON BEHALF OF CONSTABLE The first issue that I'd like to deal with is, I'll have to look at the date because I -- I think May 4, May 5, I'm not going to quibble over that.
Mr. Commissioner, I wonder whether I could take five minutes just to look at the file.
19Paul JankeCross-exam by Mr. Hira (for Cst. Kwesi Millington) CROSS-EXAMINATION BY MR. HIRA ON BEHALF OF CONSTABLE Thank you for letting me look at your file, from the Commission enclosing the materials that You reviewed the materials and provided, frankly, an incredible turnaround, the eight-page report of Now, was there any specific question posed to you And so the purpose of your report -- I've gone through your report and I don't note in there any purpose or question, unless I'm missing something.
I haven't read it recently, but I'm going to supposed to do, was there someone or something, some question that was posed to you, such as, would you review Dr. Lu's initial report and office by Mr. Vertlieb, and that's the question could I provide an opinion reviewing Dr. Lu's 20Paul JankeCross-exam by Mr. Hira (for Cst. Kwesi Millington) you've given earlier and not unlike the one I've tried to paraphrase was posed on that date? gave in examination by Mr. Vertlieb, you noted that the process that you're undertaking to some degree had -- well, has a considerable degree of And when you say that he responded or appeared to respond to police direction, that is speculation I'm not sure I'd call it speculation.
what I'm referring to is that police give directions; he appears to move in the direction Now, I noted that you analyzed -- that you made some notes regarding the video.
And with respect to those notes, the last page of your notes - if I may approach you - you have a You have a time period starting at 3:05.
read the three lines that appear after that.
"Interaction with police and appears to respond to police, you would agree with me that picking up a stapler, opening it and holding it in a clenched fist, chest high, with the other fist clenched, that doesn't appear to be a proper response to the I wouldn't call it a proper response to police, consistent with the circumstances he found 21Paul JankeCross-exam by Mr. Hira (for Cst. Kwesi Millington)Cross-exam by Mr. Butcher (for Cst. Bill Bentley) next one, is it, "The translation."? I think it may have been reformatted so I wasn't Can I show him my paragraph (indiscernible - Okay, the third full paragraph, "The translation .were consistent with the circumstances he And you're basing that on Exhibit 33, the As I speak no Polish, I would have to, yes.
will trash this office," "I will smash the glass, see" -- you view those as consistent with the anxious, clearly is unsure as to what is going on or why he's where he is, and he's responding with Butcher and I act for Constable Bill Bentley.
CROSS-EXAMINATION BY MR. BUTCHER ON BEHALF OF CONSTABLE The first area deals with the question of how long have you had this divided practice between your private forensic practice and your Youth Services 22Paul JankeCross-exam by Mr. Butcher (for Cst. Bill Bentley) During that time, how often have you seen people been in delirious states, usually secondary to medication and severe psychiatric illness.
would not have seen many patients directly.
will have reviewed hundreds of files of people who had suffered major injuries and been hospitalized and then assessed and treated for delirium in that But you're looking at that after the fact -- In a clinical setting, are we talking about once a And I think you've conceded that Dr. Lu's practice would involve dealing with people in active states And that means working in a hospital with medical Well, there's different aspects of psychiatric practice, but consultation-liaison, that's a large The second area has to do with a comment you made I presume it's a fairly common feature of Yes, it's a common feature of the people that see In the youth population I'm dealing with, probably 25 percent present with what we would likely call dependence on various drugs and 75 to 90 percent are active heavy users of drugs.
it's part and parcel of that aspect of my 23Paul JankeCross-exam by Mr. Butcher (for Cst. Bill Bentley) practice, addiction, either before the event leading to the civil litigation or addiction subsequent related to medical treatment, is And I take it from the comment that you made that I referred to that a person in withdrawal from alcohol has to be treated quite carefully and -- Yes, because they have a tendency to go into delirium, which can be a fatal condition.
And in a medical setting, what is done to assist You would treat them with intravenous fluids.
would treat them with vitamins because of particular problems that arise with rehydrating people who haven't been eating properly.
typically treat their agitation and delirium with medications such as benzodiazepines in low doses would be used to manage the person's agitation.
Withdrawal without that medical treatment can be number of the translation of the voice recording? questions about things that were said, and we have to the translation, at time mark 3:00, that's when As I recall from viewing the video, this is when he's having some interaction with the police, and I believe it's when they are around him.
me it's, I think -- the impression I get is that Mr. Dziekanski was happy to see the police that seems to be his response, and then he becomes what appears to be puzzled or upset by their actions, and that's when he made that particular that when I asked the translator whether it could also be interpreted as "Have you lost your minds?" he agreed with me that that was another version of that translation, "Have you become stupid?" "nuts" the other day but I was wrong.
perhaps Dr. Janke could then be excused.
witness stand, Ms. Roberts has asked that the report of Dr. Lu, May 12th, 2009, be marked as an exhibit, and that's totally reasonable.
this of course is in response to the order that you made that the different medical practitioners be sent material, and the plan would be that if any of these experts write back, that that material would be provided to the Commission as I believe Mr. Neave has some questions and issues regarding this report and the materials I stand up to alert the Commission of that rather than to try to elucidate his concerns.
of the things that may be an issue is whether or not the transcripts of the doctors - Chambers, Kerr, Janke and Tseng; that is the cross- examination transcripts - were sent as well.
assist your last comment - that these have been in, they've been sent out, and as far as we know Just on that last point, I think the concern was - and again, I'm not speaking for Mr. Neave - whether or not Dr. Lu had them prior to his report Well, the face of the report would suggest transcripts as of May 12 would suggest not.
again -- now I'm going where I really don't want to go, which is leave that to Mr. Neave.
(PROCEEDINGS ADJOURNED TO MAY 22, 2009, AT

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