CPS use of force on armed man reasonable and justified

ASIRT’s investigation was comprehensive and thorough, conducted using current investigative protocols, and in accordance with the principles of Major Case Management (MCM). Numerous witnesses were interviewed, including civilian witnesses. The involved officer declined to provide a statement, as is his constitutional right.

This investigation focused on the handling of a person in the midst of a mental health crisis. Investigation would show, however, that prior to the final incident, the man’s mental health had been markedly deteriorating and interventions had been attempted and failed, leading to the final confrontation.

Days Leading Up to the Critical Incident

At the time of his death, the 43-year-old man was approximately 191 cm tall (6’3”) and 101 kg (224 lbs) and had no prior criminal record. In 2015, he was the victim of an assault that resulted in some form of head injury. Friends and family expressed concerns about his declining mental health, which they attributed to this head injury. The man expressed anger towards police for failing to identify the perpetrators; however, there was no record that the matter had ever been reported to CPS.

On January 21, 2018, the man called 911 and requested an ambulance. Police attended and the man told them he was “just messing around” and did not need assistance. As such, Emergency Medical Services (EMS) were told that they were not needed. Shortly after, the man called a second time and requested assistance. Police again attended but requested the assistance of EMS on scene. The officers related that the man seemed to be caught in a verbal loop, repeating what sounded like “Bourne, Bourne, Bourne, 911, 911, 911, crickets, crickets, crickets.” He advised police that he was the reincarnation of Jennifer Aniston and told them, “All I want is for someone to tell me I am not insane.” Shortly after 11 p.m., CPS apprehended the man under the Mental Health Act and transported him to the South Health Centre. He was assessed and discharged.

On January 24, 2018, the man spoke with his father and told him he was having mental health issues and that he was going to call 911 and get help. Around midnight, the man again called his father and indicated that he was at the hospital and asked his father to get him a lawyer because he felt the hospital was infringing on his rights. Later that day, the man’s father spoke to someone at the hospital who advised that he had been discharged shortly after 6 a.m., reportedly after a “good night’s sleep.” The father was advised that a doctor determined that there was no medical reason to keep him in hospital and there was no reason for him to see a psychologist.

On January 25, 2018, the man’s father called 911 requesting assistance, indicating that he had spoken with his son, who “seemed out of it,” and that he was concerned that his son might engage in self-harm. CPS responded, but when they arrived on scene, EMS personnel were already present, having responded to the location on an unrelated call. EMS transported the man to the Rockyview Hospital. The father indicated that it was his understanding that he stayed for a few hours before he was once again discharged.

The man next spoke to his father on the evening of January 26, 2018. The father reported that his son seemed more stable, and had told him he was at the casino, that he was tired and was going to get a hotel room. His son did make one cryptic statement to the effect that this was his “last night as a free man,” which he did not explain. This was, tragically, the last time that man would speak to his father.

The Critical Incident

At the time of the incident, the man resided at Grandel Manor, a two-storey apartment building located at 606 68 Avenue SW, in Calgary. The man lived on the second floor in an apartment that had a balcony to the rear of the building, overlooking the parking lot and back alley.

On the night of January 27, 2018, the man and another resident of his building walked to a local pub for a drink. As they walked to the pub, the man ran into traffic, with the resident stating it seemed like he was “trying to get himself killed.” Once at the pub, a conflict with staff led to them leaving after one drink to return to the apartment building.

At about 8:53 p.m., a neighbour called 911 to advise that the man was having some sort of “meltdown” or he was “on something.” The caller advised the man was yelling, screaming and throwing items from his apartment into the hallway. The caller advised that during a brief conversation with the man, he tried to give the caller his pet bearded dragon. The caller advised that this had been going on for about 10 minutes and they were fearful for their safety.

At 8:59 p.m., the same resident who had earlier gone to the pub called 911 and advised that his friend was having “a breakdown.” He advised that the man had previously suffered a brain injury and he was worried that he would harm himself. He also advised that the man had left his pet bearded dragon with him.

Officers responded, arriving on scene at about 9:03 p.m. The officers entered and spoke with the second caller regarding the man’s mental health issues. Officers were aware that the man had previously been apprehended under the Mental Health Act. The officers could hear banging and noise from the man’s apartment and noted numerous items littering the hallway and nearby stairwell, including a smashed air conditioning unit, broken ceramic items and pieces of wood. The man, who was in the apartment behind the closed door, could be heard yelling.

One officer attempted to speak with the man and asked him to come into the hallway so that they could talk, but not to bring anything with him. The officer made this request approximately eight times. The man ultimately acknowledged the officers’ presence from inside the suite, when he said words to the effect of “So what, it’s the police.” The officer continued to encourage the man to come out to speak with him, saying he was concerned about his welfare. At one point, the officer thought that they persuaded the man to come out; however, shortly thereafter, he became more agitated and based on what the officers could hear, resumed smashing things in the apartment. Officers believed, based on the information received, that the man was alone in the suite but could not be sure.

At 9:17 p.m., the decision was made to take a step back and cease trying to talk with the man in order to give him some time to calm down until EMS arrived on scene, at which point they would try to persuade the man to voluntarily go with EMS under the Mental Health Act.

At about 9:21 p.m., an officer parked a marked police vehicle at the rear of the building, in front of a truck identified as belonging to the man. The other officers were either inside or in front of the building. The lone officer could see the man moving in the apartment but could not see specifically what he was doing. What sounded like something being broken and plastic ripping was heard just before the man came out onto his balcony holding what appeared to be a long silver knife in one hand and what was described as an axe in his other hand. The officer indicated that the man began randomly talking about weapons and killing “lots” of people. At about 9:28 p.m, the officer communicated this information to the other officers on scene.

An officer who had been out in front of the building ran to the back of the building to assist, his service pistol drawn at the low ready. As he did so, the officer at the rear asked the man if he had a gun, prompting the man to respond with words to the effect of “No, I wish, I would shoot you all.”

As confirmed by a nearby civilian witness, both officers encouraged the man to calm down. The man climbed onto the balcony railing and jumped off the balcony to the ground below, a distance of approximately 3.92 metres. The second officer told the man to drop the axe. The man responded, “No, I’m going to cut your fucking head off.” The man began very deliberately and quickly advancing on the second officer. In the words of the civilian witness, the man “rushed” the officer. As he did so, he repeated the words “Shoot me, shoot me” as the officer ordered him three or four times to drop the weapon/axe and to stop. The officer’s commands, which were described as clear and concise, were overhead not just by those at the rear of the residence but also by officers and paramedics staged at the front of the building. As the armed man continued closer, the officer fired a single shot that struck the man in the torso. The man twisted around, then fell to the ground. Both the civilian witness and the other officer placed the man as having closed the distance between himself and the second officer to within approximately 3-7 feet before the officer fired.

The two officers secured the man and moved the axe out of his reach. Given the darkness and the snow, they did not immediately see the kitchen knives, which would later be recovered from the snow. The EMS personnel responded immediately to provide emergency treatment and transport to hospital. The man was conscious and complained that his wrists were sore, so the handcuffs were removed. EMS replaced these with soft Velcro restraints at the wrists and legs, as the man became increasingly agitated. Once at the hospital, he immediately underwent emergency surgery; however, he was declared deceased shortly after 2 a.m. on January 28, 2018.

A small black-handled axe and one black-handled kitchen knife were recovered from the snow near where the man fell after being shot. A second black-handled knife was found in the snow under his balcony.

Two additional knives, a folding knife and a throwing knife, were removed from the man’s clothing following the shooting.

The man’s cause of death was determined to be a single gunshot wound to the torso. Toxicology confirmed the presence of alcohol and both the active THC component of cannabis and its metabolite in his body.

Analysis

It is always a tragedy when a life is lost during an encounter with police, even more so when the person dies in the midst of a mental health crisis. It is clear throughout the handling of this matter, however, that the officers were all working towards the safe apprehension of the man under the provisions of the Mental Health Act for assessment and treatment. Unfortunately, even when police act with the best of intentions, their response is determined by the situation. In this case, when the man armed himself and began threatening to kill people, the nature of the encounter changed.

Under the Criminal Code, police officers are granted certain powers and authorities to facilitate the performance of what can be a challenging job. The Criminal Code authorizes a police officer to use as much force as is reasonably necessary in the administration or enforcement of the law. This can, in limited circumstances, include force that is intended or likely to cause grievous bodily harm or death. Resort to lethal force is only permitted where an officer believes, on reasonable grounds, that it is necessary for the self-preservation of the person or the preservation of any one under that person’s protection from death or grievous bodily harm. Further, the Criminal Code provides that any person, including a police officer, may use reasonable force in self-defence or the defence of another person.

In order for a police officer’s use of force to be authorized, the officer must be acting in the lawful execution of his or her duties. In this particular case, there is no question that all involved officers were acting in the lawful execution of their duties. They had the authority under the Mental Health Act and the Criminal Code to investigate, and apprehend or charge, particularly given the calls from residents who expressed fears for both the man and their own safety.

Upon their arrival, the officers attempted to encourage the man to come speak with them, allowing themselves and the man time to resolve the situation peacefully, with or without the assistance of medical professionals. The strategic decision to step back and contain the man until medical assistance arrived on scene demonstrated their intention to calm things down. It was the man who ultimately escalated the situation to something clearly criminal and life-threatening.

In the circumstances, viewing the incident as a whole, the officer’s use of lethal force, made only upon the man’s rapid advancement on the officer, while armed with an axe and a knife or knives, accompanied by threats to kill, was reasonable and justified. The risk presented by these actions was both serious and immediate. These actions, both objectively and subjectively, were capable of giving rise to a risk of grievous bodily harm or death to the officer, and accordingly, the officer’s decision to fire his service pistol was both lawful and justified. While the man was undoubtedly in the midst of a mental health crisis and potentially suicidal, he was not only capable of causing grievous bodily harm or death, he was threatening to do so. The officer provided clear commands to drop the weapons and/or stop and only fired when the man came close enough to present an imminent threat of grievous bodily harm or death.

Conclusion

There are no reasonable grounds, nor reasonable suspicion, to believe that the officer committed an offence(s) and as such, will not be charged with any offences.

In the vast majority of cases involving a person in the midst of a mental health crisis, intervention, apprehension under the Mental Health Act, and a social-medical approach may be what is called for. It could be a critical mistake and naïve, however, to approach these cases assuming that a mentally ill person is necessarily harmless. Those in the midst of a mental health crisis can be as dangerous and capable of causing harm or killing as any other person, perhaps even more so, as they may not be rational and the opportunity for first responders to employ reason to negotiate a peaceful surrender can be compromised.

The man’s behaviour on January 27, 2018 was that of a person clearly in the height of a mental health crisis. When he was well, prior to his injury in 2015, he was described as a hard worker, and a good son and brother whose family would never have imagined he could be involved in the events that unfolded that night. In this case, the evidence clearly demonstrates that the officers on scene were attempting to work toward a result that would enable the man to obtain the medical help he needed, but the nature of the situation changed dramatically when the man armed himself, made threats to kill, and jumped from the balcony and advanced on the officer.

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.