ASIRT’s investigation was comprehensive and thorough, and conducted using current investigative protocols. ASIRT interviewed all relevant police and civilian witnesses. Radio communications recordings and computer aided dispatch (CAD) records were seized. The involved officer voluntarily provided a statement. Investigators canvassed the area, but were unable to locate a CCTV video record of any portion of the incident. EPS vehicles are not equipped with in-car cameras, nor do EPS officers wear body-worn cameras.
Between March 25 and 27, 2017, police repeatedly received information that suggested the 34-year-old man was in possession of firearms and that he was willing to use those firearms against police. The information suggested the source(s) had some knowledge of the man and his circumstances. Some of the information was demonstrably reliable while the remainder of the information required further investigation.
A review of the man’s history revealed that in October 2016, he was reported to have brandished a handgun and threatened a female acquaintance with it. In November 2016, he was stopped in a vehicle containing a pellet gun, mask, radios, cocaine and methamphetamine. On Dec. 20, 2016, the man was arrested and charged with – among multiple other offences – firearm offences, including possession of a prohibited or restricted firearm with ammunition readily available, and possession of a firearm in a motor vehicle. The man was on release for offences related to all of these offences at the time of the critical incident, and bound by bail conditions, including a curfew.
Based on the received information, EPS members began surveillance on the evening of March 27, 2017. They observed the man engaging in conduct that violated his bail conditions. For safety reasons, police decided to do additional surveillance to better assess the risk. On March 28, 2017, officers conducted a curfew check at the man’s residence, but were advised by another resident that the man was not home. A check at the residence of the man’s common-law spouse also failed to locate him. One of the officers gave the man’s spouse a business card, along with a request for the man to call. On March 30, 2017, the man contacted the officer, who advised the man that he had an outstanding warrant and was also in violation of his bail conditions. The man seemed willing to voluntarily surrender and address the matters. The officer indicated he would find out what was happening regarding the violation of bail conditions and call him back.
It was decided that an appropriate and safe approach would be to have the man voluntarily surrender to be arrested in relation to the outstanding warrant and breach of bail conditions. Following the arrest, investigators would attempt to interview the man regarding the allegations of firearms possession and possible threats. Having set up surveillance, the officer who had spoken to him earlier called the man back at approximately 6 p.m. to advise him of his outstanding issues, inform him that he would be subject to an arrest, and discuss surrender. The officer advised the man that he would be taken into custody and that he would have a bail hearing. The man indicated that he wanted to speak to counsel and was advised that he would have an opportunity to contact counsel following his arrest. The man became increasingly agitated and argumentative on the phone, clearly reconsidering whether he would surrender voluntarily. He advised he would speak to his lawyer and hung up saying, “Peace, I’m out.”
The surveillance team was advised that the man would not be turning himself in. Immediately thereafter, the man left the residence carrying a black bag, in the company of another man. Both men seemed to scan the area as they moved towards parking stalls north of the residence. The man entered the driver’s seat of a nearby Chevrolet Impala while the other person entered the passenger side. It became apparent that the man, as well as those associated with him, both in the vehicle and back at residence, were looking for police. As the registered owner was not in the vehicle, by entering the vehicle, the man violated another one of his bail conditions. When the man drove out of the parking lot, officers tried to follow, but the man performed a U-turn on 50 Street at 130 Avenue to avoid a red light, and lost police at approximately 53 Street and 130 Avenue. Moments later, the Impala was found abandoned at 129 Avenue and 54 Street. Officers fanned out in the area looking for the man, who they now believed to be on foot. At about 6:20 p.m., an officer found the man alone and on foot at approximately 128 Avenue and 52 Street.
Only a handful of individuals were present at the time of the final encounter and the officer-involved shooting. Besides the involved officer and the man, another officer had arrived on scene. Additionally, two civilian witnesses were driving in the area when they came upon the incident and made certain observations. Lastly, two additional civilian witnesses observed elements of what occurred shortly before the officer fired his service weapon, although they did not witness the shooting itself.
The accounts of all the independent witnesses and the officers agree that the man appeared to be arguing with the involved officer, who was in plainclothes and not identifiable to the independent witnesses as a police officer. To them, it looked like a conflict between two individuals – one (i.e., the officer) associated with a vehicle and the other standing on a dirt/grass area a short distance away. The men appeared to be yelling at each other but none of the witnesses could hear what was being said. With the exception of the version provided by the man himself, all witnesses, including the independent witnesses, agreed that the man was not surrendering but rather yelling, “acting tough,” jumping up and down and waving his arms. One witness compared the man’s behaviour to a temper tantrum. The civilian witnesses all agree that they did not see the man advance on the plainclothes officer, something that is not in dispute. The issue in this case was never whether the man came close enough to the officer to physically engage, but whether the man was potentially armed with a firearm, a risk that the civilian witnesses would have been unaware of.
Now aware that police were looking for the man, the officer indicated that he had concerns about public safety, given his belief that the man might be armed, and felt he needed to make an arrest before the man made it to a more populated area. The officer yelled commands to the man, indicating that he was under arrest and to get down on the ground, commands which he described as being ignored.
As the officer confronted the man, he indicated that the man’s hand went into the pocket of his sweatpants and that he appeared to be pulling a dark item that was black and had a straight edge that resembled, to him, the receiver of a pistol. Feeling that both his and the second officer’s lives were at risk, given the man’s history and the recent police intelligence, the officer fired his pistol, whereupon the man’s hand came flying out of his pocket and the man spun onto the ground. From her vantage point, the second officer saw the man bring his hands down near his waistband, at which point the other officer fired. A black cellphone was located near the man’s head immediately following the shooting.
In this case, it is beyond dispute that the man was ultimately determined to have been unarmed. From a general standpoint, the shooting of an unarmed man is troubling and requires careful scrutiny. Both the circumstances and the law must be carefully considered.
As one might expect, there are inconsistent accounts from the various witnesses. Eyewitness evidence has well-recognized frailties and can be susceptible to inaccuracies based on honest but mistaken perceptions. In addition to honest but mistaken perceptions, not all witnesses are reliable and/or credible and one has to be alive to the potential for a witness to deliberately lie, misrepresent or colour their evidence to place themselves and/or their conduct in a better light. Given that, regardless of their character or criminal history, a person can be honest and still be wrong about something they perceived and one should be cautious about finding deliberate dishonesty unless it is the only available interpretation. Where deliberate dishonesty can be demonstrated, however, that can influence how a particular witness’s evidence is assessed as a whole.
The reliability of the man’s formal statement to investigators was questionable. It was inconsistent with brief descriptions he had given to investigators in the hospital and it was internally inconsistent in multiple respects. The man maintained that he was unaware that the involved officer was a police officer but then indicated that he had complied, had not resisted and suggested that he was not a stupid person and would follow the instructions of a police officer since he had family involved in corrections and law enforcement. While the man’s ability to recall the events may have been negatively impacted by his injury and subsequent hospitalization, some aspects of his statement were incorrect and, in some respects, demonstrably, unequivocally false.
Under Sec. 25 of the Criminal Code, an officer is entitled to use as much force as is reasonably necessary in the lawful execution of his or her duties. An officer is only entitled to use as much force as is reasonably necessary to affect his or her lawful purpose; excessive force is not protected under Sec. 25 of the Criminal Code. Under Sec. 34 of the Criminal Code, any person, including a police officer, is entitled to the use of reasonable force in defence of themselves or another person.
Courts have provided a number of principles to assist in the assessment of the lawfulness of a police officer’s use of force. The starting point is that if a peace officer acts on reasonable and probable grounds, he or she can use as much force as is necessary to effect an arrest; however, if he or she uses more force than necessary, the protections under Sec. 25 of the Criminal Code are lost. A peace officer cannot use force that is intended to cause or likely to cause death or grievous bodily harm unless he believes it is necessary for the purpose of preserving himself or anyone under his protection from death or grievous bodily harm.
In weighing the amount of force used, one must consider what the officer would have known or may have reasonably believed at the time the force was used, not what might have been determined after the fact. Furthermore, an officer is not be expected to measure the force used with exactitude or “to a nicety.” Detached reflection cannot be demanded in exigent circumstances. It is the reasonable belief of the police officer in light of all the circumstances that is important.
Sections 25 and 27 of the Criminal Code require that the force used be no more than what is reasonably necessary. Some allowance must be made for an officer, in the exigencies of the moment, misjudging the degree of force necessary.
There is an inherent challenge in assessing the use of potentially lethal force in the face of evidence that establishes, after the fact, that the person was not armed. If one had the benefit of knowing the person was unarmed, it would be easy to agree that when the confrontation occurred, the person would likely not present a risk of grievous bodily harm or death to the police officer or anyone under his protection. That is not, however, the lens through which the officer’s conduct must be assessed. The issue is not whether the officer was correct in his belief that the man might have been reaching for a firearm. The issue is whether the officer reasonably believed that the man could be in possession of a firearm, based on the information available at the time, and that discharging his firearm was necessary to protect himself and/or another person from grievous bodily harm or death.
A person’s criminal history and prior character has limited relevance in any particular investigation. It can, however, be relevant to inform the assessment of the risk that person might present to the safety of police and the general public, but generally only in circumstances where the officer(s) know who the person is when an encounter occurs. If officers are unaware of who they are dealing with, it plays no role in the perception of risk. In this case, EPS officers, including the involved officer, were fully aware of the man’s identity and his background at the time of the officer involved shooting and the knowledge of the man’s background was relevant to any subjective and objective reasonable assessment of risk.
In this case, the evidence established that immediately prior to the confrontation, police had received information that included a belief that the man was in possession of firearms that he was willing to use, including against police officers. Other aspects of the information that had been provided could be considered reliable, which would have supported an inference that it was possible that the information regarding the man carrying firearms and his preparedness to use them might also be reliable.
Checks into the man’s background provided information that would support an inference that he may currently be or may have been involved in the drug trade. It would also be fair to state that the possession and use of firearms can be associated with involvement in the drug trade.
These checks also provided information to officers that, in the preceding four and a half months, the man had been charged with offences relating to the possession and use of firearms:
- The man had been in possession of a firearm on Oct. 26, 2016, and allegedly threatened a woman with it.
- The man had been in a vehicle that contained a pellet gun on Nov. 24, 2016, and had been in possession of controlled substances, in addition to other items.
- The man had been found in possession of a prohibited or restricted firearm with readily accessible ammunition, in a motor vehicle, on Dece. 20, 2016. Further, he had been found, again, in possession of a controlled substance.
While the information was dated, the man nevertheless had a criminal record for violence, including assault with a weapon.
While the man had initially appeared compliant when contacted by police about an outstanding warrant and the breaches of recognizance, he became difficult and uncooperative, choosing not to surrender voluntarily, and his conduct immediately after that call could reasonably be inferred to be an attempt to flee to avoid arrest. He appeared to be actively looking for police in the area. These observations were corroborated by the man’s own admission of having seen multiple officers in unmarked vehicles.
While the information was incomplete, without additional time and resources to further investigate, it painted a picture that would have reasonably supported a belief that the man could be in possession of a firearm(s) and/or explosive device, and could present a risk to police and public safety.
The involved officer provided evidence that, contrary to his verbal commands, the man lowered his arm down to his pants pocket and began to remove something that was black with a straight edge that he believed was consistent with a handgun. This officer’s evidence was corroborated by the evidence of the second officer who arrived and recounted her observations that the man brought his hand down to the area of his waistband. Lastly, while the man denied that he grabbed anything from his pants pocket, on his own evidence, the man confirmed that he brought his hand(s) down. The recovery of the cellphone from the ground where he fell contradicted the man’s version of events.
In the circumstances, based on the information available at the time, the officer’s belief that the man might be in possession of a firearm(s) was reasonable. When he responded negatively to directions, became involved in a yelling match with the officers and brought his hand(s) down towards his waistband/pocket – even on his own evidence – it was not unreasonable, in all the circumstances, to believe that he might be reaching for a firearm.
Nothing in his conduct would have conveyed cooperation or compliance. The officer was required to make a split-second decision. A police officer does not have to wait to be fired upon to respond. If an officer reasonably believes that a person presents an imminent risk of grievous bodily harm or death, he or she is authorized to use lethal force.
Having carefully reviewed the evidence, it is the conclusion of executive director Susan Hughson, Q.C., that the officer had objectively reasonable grounds to believe that the man might be armed. Further, it was objectively reasonable to believe, based on the information available at that time, that when he lowered his arm(s) and placed his hand(s) in or near his pockets in apparent contravention of very clear commands, the man might be reaching for a firearm and that he presented a risk of death or grievous bodily harm to the officer. As such, the officer’s use of force was justified and reasonable pursuant to the provisions of the Criminal Code. There are no reasonable grounds to believe that the officer committed any Criminal Code offence(s).
This release is distributed by the Government of Alberta on behalf of the Alberta Serious Incident Response Team.
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