ASIRT’s Investigation
ASIRT’s investigation was comprehensive and thorough. All relevant police and civilian witnesses were interviewed, including both occupants of the stolen vehicle. A significant amount of CPS video, from the HAWCS police helicopter and numerous CPS vehicles, was secured and analyzed, along with all relevant dispatch data and audio recordings. The scene was examined. Finally, the CPS policies relevant to the discharge of firearms at and from moving vehicles were obtained. The subject officer, as is his right, declined to provide ASIRT investigators with a statement or access to his notes or reports. This does, however, result in a gap in the evidence regarding the subject officer’s subjective perception of the situation at the time he decided to resort to potentially lethal force.
Circumstances Surrounding the Officer-Involved Shooting Incident
On July 27, 2018, at approximately 4:08 p.m., a CPS officer operating an unmarked police vehicle observed a grey Ford F-150 leaving an alley in the 200 block of 20 Avenue NW. The officer conducted a database check that revealed the truck had been reported stolen. The officer did not engage the stolen vehicle at that time, and instead waited for the HAWCS helicopter to arrive. Once the helicopter had arrived at the location, the officer was directed to initiate a traffic stop on the stolen truck. As soon as the police vehicle’s lights were activated, the 23-year-old driver of the truck began driving into oncoming traffic in an attempt to deter the police from pursuing. The officer deactivated the police vehicle’s emergency equipment and did not initiate a pursuit, as HAWCS was able to maintain contact with the vehicle. While other CPS vehicles were involved, those vehicles stayed out of visual contact with the truck, following it while being directed by HAWCS.
To put this and the following evidence into context: Macleod Trail is a major roadway in Calgary and generally has significant vehicular travel. This incident occurred during what would be considered a time of especially high traffic volume.
The driver of the stolen vehicle was clearly aware of the presence and involvement of the HAWCS helicopter, as even after CPS vehicles stopped pursuit and deactivated their lights, he continued to operate the vehicle dangerously, travelling at a high rate of speed, veering into oncoming traffic, driving on sidewalks and over medians, and failing to stop at stop signs or red lights. While driving in this manner, the stolen truck was involved in two non-injury collisions and numerous near-collisions with civilian vehicles. The driver of the stolen truck told his passenger at this time that he had a “no-stop policy” for police, and later confirmed to ASIRT investigators that he was driving this way in order to dissuade police from following him. As the helicopter maintained contact, the driver indicated that he realized the police were not going to disengage, but still he refused to surrender.
Involved officers requested assistance from the CPS Tactical Unit to help stop the stolen truck, and at 4:46 p.m., the incident commander gave members of the tactical unit permission for vehicle intervention and reactive authority. These directions authorized members of the unit both to make deliberate contact with the vehicle in order to stop it and to engage the vehicle without having to wait for specific permission, should the opportunity present itself.
The subject officer, a member of the tactical unit, was the front-seat passenger in a black Ford F-350 truck operated by another officer who was also a member of the tactical unit. Over the radio, members of the unit discussed the options for stopping the stolen truck, taking into consideration such impediments as the size of the stolen vehicle and the volume of civilian traffic. It was agreed that if the opportunity presented itself, they would use vehicle contact/intervention – in other words, to ram the suspect vehicle.
Soon, the stolen truck entered a parking lot on Macleod Trail, several blocks south of the subject officer whose vehicle was proceeding southbound on Macleod Trail. There was considerable vehicular traffic as well as pedestrian traffic on the sidewalk on the west side of the southbound lanes of Macleod Trail.
At approximately 4:53 p.m., the truck exited the parking lot, but instead of turning southbound onto Macleod Trail, which was the only legal option to exit the parking lot, the truck proceeded northbound, travelling on the sidewalk and grass boulevard on the west side of the southbound lanes. The vehicular traffic in the area was heavy and there had been pedestrian traffic observed in nearby blocks but neither were immediately present and in the path of the stolen vehicle. The tactical officers spotted the stolen truck and announced on radio that he was coming out. The subject officer then stated to his partner “Want me to shoot him?” to which the partner responded “No, I’m going to ram him.”
As this exchange occurred, the stolen F150 was travelling at approximately 30 km/h while the tactical unit truck was travelling at between 30 and 40 km/h. The vehicles were essentially travelling towards each other on parallel non-collision paths. Had both vehicles continued these northbound and southbound paths, the vehicles would simply have passed each other. In other words, the stolen vehicle was not being driven at the police vehicle. The officer driving the police vehicle activated the vehicle’s emergency equipment and turned the police vehicle sharply towards the passenger side of the stolen truck to make deliberate contact. Immediately prior to contact with the stolen truck, the subject officer discharged three shots from his service pistol through the windshield of the moving tactical unit truck, striking the moving stolen truck.
While the subject vehicle would have undoubtedly encountered vehicles and potentially pedestrians had it continued on its path for any distance, at the time that the shots were fired, no other vehicles lay in the immediate path of the subject vehicle. One of the shots struck the upper middle part of the stolen truck’s windshield near the rearview mirror, a second struck the windshield on the bottom driver’s side, while the third struck the front passenger-side fender. The collision caused the airbags of the stolen truck to deploy and the engine to shut off.
The stolen truck rolled for approximately 75 metres with the engine off before it was boxed in by other tactical unit vehicles. The two occupants of the stolen truck, the male driver and a 22-year-old-female passenger, were arrested without further incident. Neither had sustained any injury from the shots fired.
The driver was found to be wanted on outstanding warrants for theft of a motor vehicle and assaulting a peace officer. A sawed-off shotgun and ammunition were located inside the stolen truck but were not used or otherwise displayed during the incident. The driver later admitted to consumption of both heroin and methamphetamine prior to the pursuit.
CPS has developed policy relating to shooting at or shooting from a motor vehicle. They state, in part, as follows:
- Firearms will not be discharged at a moving or potentially moving vehicle unless an occupant in the vehicle is immediately threatening you or another person with death or grievous bodily harm by means other than the vehicle. (emphasis added)
- Firearms will not be discharged from a moving vehicle, except in imminent exigent circumstances and in the immediate defence of life where no other reasonable use of force options are reasonably available. (emphasis added)
Analysis
It must be remembered that the focus of an ASIRT investigation is the conduct of police officers in any given critical incident, not the conduct of the affected person(s). The examination of police conduct in this case is in no way intended to minimize or excuse the conduct of the driver in this case, whose egregious conduct placed all involved officers in circumstances where difficult decisions had to be considered and more extreme responses were engaged. Indeed, all of the involved officers believed, quite correctly, that the driver’s driving pattern established he had little regard for the lives of anyone else he might encounter, including innocent civilians, and that the longer the attempt to locate and stop this driver, the greater the risk that his egregious driving pattern would result in serious bodily harm or death to another person, whether that be the passenger in his vehicle, the police officers attempting to stop him or members of the public who might find themselves in his path.
Under Section 25 of the Criminal Code, a police officer is entitled to use as much force as is reasonably necessary in the lawful administration and enforcement of the law. Section 25(4) specifically deals with the power of a police officer to use force intended or likely to cause death or grievous bodily harm on a fleeing subject, but only under extremely limited circumstances. That section requires, in part, both that the officer believes on reasonable grounds that such force is necessary to protect the officer or others from imminent or future death or grievous bodily harm, and also that the subject’s flight cannot reasonably be prevented in a less violent manner. There is also an overarching authority to use lethal force in situations where the officer believes on reasonable grounds that it is necessary for the self-preservation of the officer or preservation of anyone under that officer’s protection from death or grievous bodily harm. Lastly, a police officer has the same self-defence protections, as codified in the Criminal Code, as any other person.
While recognizing the significant risks presented by the driver’s prolonged and dangerous flight from police, at the conclusion of ASIRT’s investigation and following an examination of all of the evidence, significant questions remained as to the subject officer’s discharge of his firearm, an application of lethal force, through the windshield of one moving vehicle in an attempt to stop another moving vehicle. There were alternative reasonable measures at the officer’s disposal, including the one contemplated by multiple officers to physically intervene with a police vehicle. Shooting at the driver was, at a minimum, contrary to policy, but it also created an immediate risk of serious injury or death to the passenger in the vehicle from either the shots fired, or should the driver lose control of the vehicle, potentially injuring the passenger or any other individuals in the immediate vicinity.
It would be trite to say that the driver was engaging in extremely dangerous conduct that constituted a considerable threat to public safety. There was a second person in the vehicle, however: a passenger. Experience would suggest that the moral and legal culpability of a passenger can span a range from a person who merely becomes caught up unexpectedly in a criminal flight to someone who is a party to the offences being committed. It must be recognized, however, that there have been many cases where a passenger is riding in a stolen vehicle, possibly but not always knowing it was stolen, when the driver elects to escalate the event by engaging in flight. In these circumstances, with no opportunity to safely exit the vehicle, the passenger effectively becomes hostage to the actions of the driver. It is not possible to know whether this factored into the subject officer’s decision to use lethal force, exposing not only the driver but also the passenger to grievous bodily harm or death, as we have no evidence from the subject officer. The potential risk to parties other than the driver must be factored into the decision to use lethal force.
Additionally, this case can be distinguished from other cases involving officers shooting at vehicles where there has been an overt action on the part of the driver to drive at a police officer, which can give rise to an objectively reasonable belief that the officer is at imminent risk of grievous bodily harm or death. In this case, there is no suggestion that the driver drove the suspect vehicle at the subject officer’s police vehicle. Indeed, the collision only occurred when the police vehicle deliberately turned sharply into the suspect vehicle to initiate direct contact.
Shooting at the driver of a moving vehicle is tactically difficult and, absent exceptional circumstances, particularly high risk and strategically unsound because it does not necessarily stop the vehicle. Even if the driver is struck, the result may be that the vehicle becomes an uncontrolled, multiple-tonne projectile capable of seriously damaging anything in its path. The risk is not eliminated, but only continues. Additionally, shooting from one moving vehicle during heightened circumstances only heightens the risk to those in proximity of the gunfire. In this case, it is clear that the shots fired failed to hit the intended target which would have been the driver. It is simply good fortune that those shots did not strike anything other than the windshield and passenger-side fender of the vehicle. Additionally, there were reasonable alternatives that were available. Indeed, the decision to ram the vehicle ultimately disabled that vehicle with no serious injury or loss of life. Life-threatening circumstances do arise where an officer may find themself in a position where use of a firearm is the only option available to try to save a life. Based on the available evidence, however, those are not the circumstances of this particular case.
As these issues provided reasonable grounds to believe that an offence may have been committed by the subject officer when he discharged his service pistol, as required by the Police Act, the matter was forwarded to the Alberta Crown Prosecution Service (ACPS) for their opinion.
In the Crown’s opinion, while the conduct was potentially problematic from a Police Service Regulation standpoint (specifically the CPS policies forbidding both shooting at and from moving vehicles), the Crown’s opinion was that there was no reasonable likelihood of conviction on Criminal Code charges against the subject officer.
It is important to note that ASIRT and ACPS are bound by different standards when assessing the viability of charges arising out of an investigation. As noted above, ASIRT, as the investigative body, applies a Criminal Code standard that determines whether reasonable grounds exist to believe that an offence has been committed. ACPS, based on its internal policy regarding criminal prosecutions, applies a standard which examines whether there is a reasonable likelihood of conviction arising out of the evidence, and whether it is in the public interest to proceed with a prosecution. As is evident in this case, the application of these two different standards to the same investigation will, in some cases, result in different conclusions regarding the same file. In this case, while ASIRT found reasonable grounds to believe an offence had been committed, for the reasons provided in their opinion, the ACPS did not recommend that charges be laid.
In accordance with the opinion provided by the Alberta Crown Prosecution Service, ASIRT will not lay charges against the subject officer. This does not, however, mean that discharge of a firearm in this manner and in these circumstances was appropriate. While the driving pattern exhibited by the driver of the stolen truck was undoubtedly both dangerous and criminal, the act of firing shots through the windshield of a moving vehicle intending to hit another moving vehicle itself carries significant danger. The application of potentially lethal force needs to be governed by principles of restraint and necessity.
Following an assessment of the evidence in this case, and a consideration of the Crown prosecutor’s opinion, it is the decision of the executive director, Susan D. Hughson, QC, that the subject officer will not be charged with any Criminal Code offence.
ASIRT’s mandate is to effectively, independently and objectively investigate incidents involving Alberta’s police that have resulted in serious injury or death to any person, as well as serious or sensitive allegations of police misconduct.
This release is distributed by the Government of Alberta on behalf of the Alberta Serious Incident Response Team.