Investigation into Edmonton officer’s discharge of firearm concluded

ASIRT’s investigation was comprehensive and thorough. All relevant witnesses were interviewed. The scene was examined and photographed and relevant exhibits seized. The incident occurred in a location that had no CCTV video. The involved officer was given the opportunity to provide evidence and/or a statement, which he declined, as is the constitutional right of any Canadian who is the subject of a criminal investigation. While an officer has the right to choose not to provide any evidence, the impact of that decision can vary given the context of the investigation. In some cases, an officer’s state of mind or intent can be inferred from the surrounding circumstances and the observations and/or evidence of other witnesses. In this particular investigation, however, the absence of evidence from the involved officer created an evidentiary gap regarding how and why the officer came to discharge a live round from a firearm. That said, the whole of the evidence was sufficient to allow an informed observer to determine whether reasonable grounds existed to believe an offence had been committed.

On June 7, 2019, members of both the EPS Tactics Training Unit and Firearms Training Unit were finishing their day at the EPS Constable William Nixon Memorial Training Centre located at 12950 9 Street NE in Edmonton. Officers were sitting in a bullpen area, debriefing and making plans for an evening graduation ceremony. At the time of the incident, approximately 10 officers were in the bullpen area.

The open bullpen room is divided into two separate sections: one for the Tactics Training Section, and the other for the Firearms Training Section. The two sections are separated by a row of desks positioned nose-to-nose, with desktop shelving units essentially creating a partial barrier between the two sides. The shelving units do not go all the way to the ceiling. As such, officers use the top of the shelving units, at approximately head height, to store equipment and other items.

As the day was winding down, members were relaxing, throwing a tennis ball around the bullpen, and bouncing lasers from SIRT laser training pistols off mirrors and onto each other. A SIRT laser pistol is an imitation firearm training aid made to interact with a training vest and technology. It resembles a pistol, but does not have a functioning barrel and does not discharge ammunition. The training pistol uses a laser to provide feedback to the user. It is markedly different from the Glock pistol that is issued to officers, and which was discharged in this case.

The first and most obvious difference between a SIRT training pistol and a Glock pistol is visual. The upper portion of the SIRT training pistol is bright red, as is the trigger. A Glock pistol, by contrast, has a matte black body. As well, the Glock pistol involved in this incident had a red dot optic sight and weighs considerably more than the SIRT training pistol. The SIRT pistol has no real sights on it. The SIRT pistol sits differently in the duty holster and, as a result, the act of drawing the SIRT pistol would feel different from drawing the duty pistol. Lastly, the SIRT pistol has a smooth grip, while the Glock pistol has a textured grip.

As was noted earlier, officers in the bullpen were relaxed and approaching the end of their day. While the involved officer was on the firearms training side of the bullpen, another officer on the tactics training side popped up and pointed the SIRT pistol at the involved officer. In the words of the tactics training officer, he “lasered” the involved officer, then popped back down behind the desks where he was out of sight. Based on the scene examination and the evidence of the various officers present in the bullpen, the involved officer responded by raising a Glock pistol and pulling the trigger, resulting in the discharge of a single live round in the direction of the other officer’s desk on the tactics training side of the bullpen. A metal pinging sound was heard as the round struck a battering ram that had been placed on top of the other officer’s desktop shelving unit. Remarkably, the discharge of the firearm resulted in no injury to any of the many officers in the bullpen at the time. The damage to the battering ram was significant and immediately evident.

Officers provided statements regarding the immediate aftermath of the shooting. Immediately after the discharge of the firearm, officers present confirmed that they were okay. One of the officers present told the others that the involved officer had had a “ND,” a term which refers to the negligent discharge of a firearm, which was confirmed at the time by the involved officer. Witnesses described the involved officer as appearing embarrassed, shocked and ashamed. One officer described looking up and seeing the involved officer holding the firearm up, which would have been pointed toward the Tactics Training Section side, then slowly dropping his arm down towards the holster. It is agreed by those present that the officer said words to the effect that he was sorry, although there are slight variations on what individual officers reported as his exact words. The involved officer put the firearm down and left to report the incident to a supervisor.

The Glock pistol was seized and submitted for functionality testing. It was determined that the Glock pistol was properly functioning as designed. The average weight of the trigger pull, which equates to the amount of pressure needed on the trigger to fire the pistol, was within the “normal” range.

It is stating the obvious to note that a firearm is a dangerous weapon capable of causing grievous bodily harm or death and, as such, must be handled with great care and respect. The safe handling, use and storage of firearms is of critical importance.

The evidence clearly established the physical discharge of the firearm in the direction of the tactics training side of the bullpen, towards the location of the officer who had “lasered” the involved officer and the desk he had popped down behind. Firearms examination confirmed that the firearm was functioning properly and that the trigger pull required was within the normal range. In other words, this was not a situation where a firearm malfunctioned or had a hair trigger. The involved officer deliberately pulled the trigger when he pointed and fired the firearm. There is, however, an evidentiary gap regarding what the officer’s intent was, what the officer was thinking in that moment, why the gun was fired.

Based on the whole of the evidence, there are limited conclusions that could be drawn regarding the officer’s intent and/or state of mind. They would be as follows:

• The officer mistakenly raised the Glock pistol, believing it to be the SIRT training pistol, and pulled the trigger, resulting in the discharge of the firearm. As the SIRT pistol is designed with very significant and obvious differences to make it much less likely for an officer to make this mistake, this is unlikely, but given the context and the speed of the response, it cannot be completely eliminated as a possibility. As such, this remains an available inference as to the officer’s intent at the time of the discharge of the live round.
• The officer knowingly raised and fired his Glock pistol, mistakenly believing it to be unloaded, or loaded with simunition (simulated non-lethal ammunition used for training purposes) and pulled the trigger, resulting in the discharge of the live round.
• The officer knowingly pulled the Glock pistol and intentionally fired the gun in the direction of the other officer(s) in the Tactics Training Section. With this possibility, one would need to assess whether the gun was fired at the other officer with malice, or whether it was fired not at the officer but in that direction, either as a joke or with the intent of “scaring” the officer. All of these scenarios would give rise to serious criminal offences.

The first two scenarios would be indicative of actions that would fall closer to an accident or mistake with no intent to cause harm. The third scenario would constitute the highest level of both moral and legal culpability. Intentionally firing a gun at another person, or even in the presence of other persons in an enclosed room in these circumstances, could constitute any number of offences, from careless use of a firearm up to and including attempted murder.

Having carefully reviewed the evidence of the witnesses, the evidence appears to establish that at the time of the discharge of the firearm, the officers had been relaxed, positive and light-hearted. There is no evidence of bad blood between the involved officer and the other officer(s) present or, in that moment, even a disagreement or anger between any of them. There is no evidence of tension or threats. Immediately following the discharge of the firearm, the involved officer appeared shocked, embarrassed and immediately remorseful. These factors lend themselves to an inference that what occurred fell somewhere between the first two scenarios.

There is no evidence reasonably capable of providing reasonable grounds, nor reasonable suspicion, to believe that the subject officer discharged the firearm with the intent to harm or injure anyone, or with any malice. Indeed, any intent required by the third scenario is inconsistent with what was universally described as the involved officer’s immediate reaction following the discharge of the firearm.

That would remove the facts from falling within the highest level of legal culpability such as attempted murder, etc. That does not mean, however, that the circumstances are not still serious and capable of constituting other possible criminal offences.

Of the remaining possible scenarios, the discharge of the firearm would have been extremely careless and outside the standard of care that one would expect the reasonable person in similar circumstances to exercise. If anything, a police officer, and in particular an officer who is a member of the Firearms Training Section, would be held to a higher standard regarding the safe handling of firearms. It is not unreasonable to expect that a firearms training officer’s conduct would model the high level of safety required for the handling and use of all weapons, including firearms.

Several very basic, common-sense tenets related to the handling of firearms were ignored or violated during this incident. First and foremost, a gun is not a toy. It should never be pointed in the direction of another person except as reasonably necessary for self-defence and officer safety, and even then, only in the most serious of situations. Secondly, and in conjunction with the first rule, a person should always assume that a firearm is loaded unless and until that person has taken reasonable steps to ensure otherwise. When not being used as a weapon, an officer should ensure that a firearm has been rendered safe.

At best, the involved officer’s handling and use of the firearm fell far short of the specific and rigorous duty of care expected and established by Parliament. That no one was injured or killed was nothing short of exceptional good fortune.

While the evidence, including the officer’s reaction, would suggest that this incident was a devastating occurrence for him – that he never, even remotely, intended harm to anyone, and that it is not likely a mistake he will make again – the magnitude of this error cannot be understated. Tragically, lives have been lost in similar circumstances.

Having reviewed the evidence in this investigation, it was the opinion of Executive Director Susan Hughson, QC, that the evidence provided reasonable grounds to believe that the officer’s discharge of a firearm could constitute a criminal offence. As required by the Police Act, the matter was forwarded to the Alberta Crown Prosecution Service (ACPS) for an opinion on whether the evidence would meet their standard for prosecution and, if so, on what offences. Having been forwarded to the Crown, ASIRT was prepared to swear an Information that there are reasonable grounds to believe that an offence(s) has been committed.

It is important to note that ASIRT and ACPS are independent of each other and bound by different standards when assessing the viability of evidence arising out of an investigation. ASIRT, as an independent investigative body, has the authority to investigate and, at the conclusion of the investigation, to make a determination as to whether there are reasonable grounds to believe that an officer committed an offence, and if so, whether the officer should be charged. Responsible for the criminal prosecution of any offences arising in the circumstances of a case, it is for the ACPS to determine whether the case meets their standard for criminal prosecution. That decision falls solely within the purview of the exercise of Crown discretion. For a case to meet the Crown standard for prosecution, there must be a reasonable likelihood of conviction, and the prosecution must be in the public interest.

It is also important to note that in the context of police misconduct, accountability can be achieved in a variety of different ways, criminal prosecution being only one, albeit the most serious. Disciplinary sanctions are available to the service should it choose to pursue that form of accountability.

In this particular case, the Crown was of the opinion that while there was a reasonable likelihood of conviction, it was not in the public interest to proceed with a criminal prosecution. It was clear that the Crown had not made the decision lightly, and in no way sought to excuse or minimize the seriousness of the officer’s actions. The Crown having made the determination that the case does not meet their standard for criminal prosecution, notwithstanding reasonable grounds to believe that an offence(s) had been committed, the officer will not be charged. The fact that the officer will not face criminal prosecution does not mean that the officer’s conduct was not viewed as serious or deserving of some form of sanction. It was the Crown’s opinion that the public interest did not require the full weight of the criminal law be brought to bear in the circumstances of this case.

While there will be no criminal prosecution, it is reiterated that the evidence in this case established, at a minimum, an extremely serious lapse in judgment and carelessness in the handling of a firearm. There is absolutely no doubt that a different decision would likely have been made had anyone sustained injury or died. A police officer receives extensive training on the handling of firearms and, by virtue of his or her role as a police officer, has broad authorities to carry and use firearms in the lawful execution of his or her duties. As a member of law enforcement with that specialized training and experience, an officer is well placed to understand and recognize the risks and potential lethal consequences of the careless use and/or handling of a firearm and should be expected to handle firearms with the care and respect that is due.

The Crown having come to the conclusion that the matter does not meet their standard for criminal prosecution, the officer will not be charged.

This release is distributed by the Government of Alberta on behalf of the Alberta Serious Incident Response Team.