ASIRT’s investigation is now complete. The investigation was comprehensive and thorough, conducted using current investigative protocols, and in accordance with the principles of major case management (MCM). All relevant police and civilian witnesses were interviewed. The subject officer, while he was under no legal requirement to do so, provided ASIRT investigators with a statement. There was no available video.
Circumstances Surrounding the Incident
In Sherwood Park on June 9, 2018, the 30-year-old affected person was arrested and placed in handcuffs at 2:13 a.m. by witness officer #1. Due to the affected person’s agitated and intoxicated state, witness officer #1 requested assistance from other officers for when the affected person was brought back to the detachment and placed in cells.
They were met at the detachment by the subject officer and witness officer #2. The subject officer was the acting watch commander at this time. The three officers escorted the affected person, who was handcuffed behind his back, to the guard desk. At the guard desk was a civilian cellblock guard, referred to below as the civilian witness.
There is agreement among all witnesses about some of what happened during this time and while at the desk. The affected person was intoxicated, off balance, and belligerent. He was handcuffed behind his back throughout the entire incident. From their arrival, the affected person and the subject officer were verbally confrontational with each other. This included insults and yelling from both. This continued while the three officers assisted with removing the affected person’s personal property at the civilian witness’ desk. While at the desk, the witness officers were on either side of the affected person. The affected person was in front of the subject officer when something happened, and the subject officer struck the affected person once with the front of his open right hand. The slap was not overly hard and caused no injuries. The witness officers interceded in some manner, and the subject officer left the area. The affected person’s demeanor changed and he was calmer once the subject officer had left. He later became agitated again and accused members of having stolen money but no further incidents occurred requiring any use of force.
The various witness’ accounts of what happened in the moments leading up to the slap differ slightly. Witness officer #1 said that the affected person was leaning against the wall and then leaned towards the subject officer. Witness officer #1 placed a hand on the affected person’s chest to hold him back, and the subject officer then struck the affected person. Witness officer #1 said that he and witness officer #2 told the subject officer to leave cells so that the affected person would calm down. The subject officer left the area and the affected person did, in fact, calm down. The affected person returned to leaning against the wall. Witness officer #1 did not describe any physical difficulties controlling the affected person.
Witness officer #2 said that the affected person took a couple steps towards the subject officer, and that the subject officer then hit him. Witness officer #2 said that he and witness officer #1 told the subject officer to leave cells, and he did. Shortly after the incident, witness officer #2 told witness officer #1 that the slap did not look good. Witness officer #2 did not describe any physical difficulties controlling the affected person.
The subject officer said that the affected person moved quickly towards him, taking four or five steps between the other two officers. The affected person was yelling at him, and spitting because of this yelling. The subject officer told him to turn around since he was spitting on him. The affected person got close to him and then he hit him in order to move his head away.
The civilian witness did not see the actual slap, since he was looking down when it happened. He did, however, see what happened just before. He saw the subject officer and the affected person yelling at each other, and the subject officer appearing to get mad. The subject officer moved closer to the affected person, who was between the witness officers. He then looked down and heard the slap. The next day, when the civilian witness returned to work, the subject officer stopped at his desk and talked about the new cameras in that area and how clear they were. The cameras had just been installed and were not operational during the incident.
The affected person said that he stepped toward the subject officer. The subject officer then stepped toward him, and hit him. They were yelling at each other.
In any investigation, a prior criminal record or prior bad acts can be relevant. It is not a simple issue and should not be used for what might considered prohibited reasoning regarding propensity. That does not mean, however, that evidence of prior convictions or prior bad acts may not be admissible for specific purposes. Similar act evidence may be admissible and relevant to rebut specific defences, to establish the intent of the perpetrator, or to enhance credibility of the allegations made. Subject officers are not excluded from the potential application of similar act evidence. In this particular case, the subject officer had been the subject of 3 prior assault complaints related to the use of force on prisoners in custody, one of which resulted in a 2011 conviction for assault in relation to an on duty incident involving the use of force on a person in custody.
Arguably, the evidence related to one or more of these prior incidents could rise to the level of similar act evidence. It is recognized, however, reliance on similar act evidence is extremely restricted and is a very limited exception to the general rule that evidence of prior bad acts is generally prohibited.
Executive Director Initial Review – Reasonable Grounds
Once the investigation was completed, it was reviewed. The conclusion was that the evidence clearly provided reasonable grounds to believe that the offence of assault had been committed. In these circumstances, the investigation was forwarded to the Alberta Crown Prosecution Service (ACPS), in accordance with the provisions of the Police Act, for an opinion as to whether the evidence met the Crown standard for prosecution.
The ACPS opinion provided to ASIRT found the evidence did not meet their standard for prosecution. ASIRT was advised that the “test for proceeding with a prosecution is not met” and that “a reasonable likelihood of conviction does not exist”.
ASIRT and the Crown are distinct entities with different responsibilities. ASIRT does not direct the Crown nor does the Crown direct ASIRT. While ASIRT might not agree with the Crown position, it has no ability to compel prosecution. The standards applied are also different. ASIRT may charge when there is evidence capable of providing reasonable grounds to believe an offence has been committed. The Crown standard for prosecution requires a reasonable likelihood of conviction and that it is the public interest to proceed. As such, there is a potential gap between these two standards that can explain why an officer may not be charged.
Analysis
It is not disputed that the slap occurred. The question is whether the slap falls within the protections provided by the Criminal Code for police actions or for defence of person.
Since the subject officer provided a statement, the strongest evidence of a potential justification comes from him. His evidence was that the affected person was yelling at him and, as part of that yelling, spittle was coming from his mouth. The spitting was not alleged to be a deliberate and separate action, but instead it was due to the yelling and the relatively close proximity between the affected person and the subject officer. The subject officer stated he wanted to stop this “spitting” and that he slapped the affected person to do so.
Defence of Person
While deliberately spitting on someone is an assault, as an intentional application of force, that is not what was alleged in this case, even by the subject officer’s account. It would be a questionable use of the self-defence provisions to apply it to unintentional spittle during a verbal confrontation.
There was evidence from witness officer #2 that the subject officer said something to him about a possible head butt, that he’d had his nose broken before, he’d been punched and he’d been spit on. The subject officer appeared to be talking in generalities about the risk of a prisoner attacking him and not the specific situation, since the handcuffed affected person could not have punched him. This is inconsistent with what the subject officer told ASIRT investigators. The only actions of the affected person that the subject officer referenced in his statement related to the affected person taking multiple steps toward him (inconsistent with other witness evidence) and then spit being projected as the affected person yelled. His only stated justification for the slap was to stop the spitting.
In the circumstances, self-defence arguably has little or no application. While the officer could later claim other concerns, such as a belief that he was about to be head-butted, it would significantly impact his credibility given the statement he provided. Furthermore, even if the subject officer was to now claim a fear of being head-butted, there is considerable evidence to objectively contradict any possible subjective belief. The witness officers are on either side of the affected person and did not perceive any conduct requiring action beyond placing a hand on the affected person’s chest to prevent forward movement before subject officer resorted to physically striking him. This is evidence of the lack of any immediate objectively real threat.
Protection of Persons Administering and Enforcing the Law
While the spitting does not appear to have been a deliberate action, that does not mean that the subject officer has to subject himself to being spit on. He is entitled to take action to prevent that could include, in the appropriate circumstances, the application of physical force. An officer is, however, only entitled to use as much force as reasonably necessary to carry out that action.
Context is important. Firstly, the confrontation between the subject officer and the affected person occurs in a secure setting while at the detachment. Secondly, the subject officer is not a passive participant of the actions of the affected person, calmly going about his duties. Instead, he engages in a yelling match that has deteriorated to name calling and insults on the part of both participants. Witness officer #1 described it as that the two “were going at it.” Witness officer #2 said that the two were arguing through the entire process, or bantering back and forth. He advised that he felt the affected person kept arguing because the subject officer kept arguing back. The civilian witness said they were screaming at each other and calling each other names. None of this speaks to a lawful law enforcement purpose, nor does it speak to the professional conduct one would expect of a police officer, much less an acting supervisor. By contrast, both witness officers were able to display reasonable restraint and not get drawn into this verbal match.
Apart from the obvious unprofessionalism this shows, the subject officer was inflaming the situation. This was apparent to the witness officers and the civilian witness. Instead of de-escalating, he furthered the deterioration of his dealings with the affected person. While the affected person had been yelling and belligerent prior to the subject officer’s involvement, the subject officer’s actions escalated and reinforced this behavior and made himself the focus of the interaction. This is most effectively demonstrated by the fact that when the subject officer disengaged and left the area, the affected person immediately calmed down considerably.
Thirdly, one must assess objectively the actual risk presented by the affected person. Not only was he in a secure environment staffed by many, he was standing in between two witness officers and in front of the subject officer with a civilian staff guard in immediate proximity. Additionally, and most significantly, the affected person was handcuffed. While perhaps not completely mitigated, his ability to escape or to cause physical harm was limited. Any action by him is seriously restricted, and he is much more easily controlled by the three officers around him. Multiple officers having the ability to hold or restrain the affected person makes resort to a physical strike questionable. Furthermore, the area they were in left considerable empty space around the subject officer to permit him to move out of reach of both the affected person and his spittle, with the affected person being restrained by a simple hand to the chest. Any use of force on a handcuffed prisoner in these circumstances should require additional objective justification.
The question of whether the force used by the subject officer was reasonably necessary and not excessive must be viewed from that context. While the force used by an officer should not be analyzed to a standard of perfection, alternative actions that were available can illuminate the situation.
The most obvious actions that the subject officer could have taken instead of striking the affected person was to stop deliberately antagonizing him, move outside the reach of the spittle (by moving a couple of small steps backwards), or to leave altogether. His presence was not achieving any legitimate law enforcement goal. Indeed, if anything, his conduct was interfering with the task of getting the person properly lodged in cells. When the subject officer did leave the area, having been asked by the witness officers to remove himself after the slap, it was completely effective in ending the situation. Among the tools that police officers have to prevent a person from spitting on them, intentionally or unintentionally, would be what is referred to as a spit mask or spit sock. It is a mask designed to cover the mouth of a person as a barrier to spitting. This was not, however, considered. If the subject officer was truly concerned about being spit on, he could have applied a spit mask/sock to the affected person. With three officers present and the affected person handcuffed, they had more than adequate opportunity to do so.
Lastly, had the subject officer started to act professionally or removed himself from the situation earlier, the entire situation would likely have deescalated. The two witness officers were able to deal with the affected person without further incident.
The action noted above provided real, objectively reasonable alternatives that required no active use of force, other than perhaps holding the man during the application of the mask. Instead of employing one of them, the subject officer chose to physically strike the man. One must examine the actual force he did use as well. It was a slap, an action that does not appear to be even suited for the purpose of avoiding being spit upon. It would be hard to characterize it as a control tactic, and additionally, there is almost a demeaning element to its use by an officer on a handcuffed prisoner. It is certainly not going to stop someone from yelling nor will it stop spittle from the leaving the affected person’s mouth. A slap to the face of a handcuffed man would ultimately potentially demean and humiliate, and thereby likely only exacerbate the situation further. By resorting to slapping the man, it was less likely necessary to achieve a legitimate law enforcement purpose in that moment than it was likely demonstrative of an angry response of an officer who had lost control, both in relation to how he was dealing with the affected person and his use of force.
It is the position of ASIRT that there is evidence capable of demonstrating that the force used by the subject officer was not reasonably necessary nor part of the lawful execution of his duties. The availability of reasonable alternatives that would have better addressed the situation, and not employed force, speaks further to that issue.
Executive Director’s Decision
There is easily evidence capable of providing reasonable grounds to believe the offence of assault was committed. While in terms of the range of conduct that could constitute assault, this assault would be minor, the fact that the police officer occupied a position of trust and considerable authority, and that the affected person was in his custody in a non-public secure environment, handcuffed, makes the situation more serious. The application of physical force, particularly any form of kicks, strikes or blows, on a handcuffed prisoner requires careful consideration and objectively articulable justification. It is the opinion of the executive director that compelling evidence existed to provide reasonable grounds to believe this officer committed an offence. The force used was more than was reasonably necessary, if it was necessary at all, to perform the lawful execution of the officer’s duties. Had the Crown found that the evidence met their standard for prosecution, the officer would have been charged.
The subject officer’s actions started with unprofessionalism when he was arguing with the affected person. It was clear to the witness officers and the civilian witness that the subject officer was making the situation worse. The witness officers did not engage with the affected person, but the subject officer, who was their supervisor and should have known better, argued with the affected person and called him names. The affected person and the subject officer both laid the groundwork for a yelling match of such intensity that spit was flying around, but only one of the participants was a sober, on duty, police officer expected to carry out his responsibilities with professionalism and restraint. Based on the evidence as a whole, the reasonable inference is that the subject officer lost his control and responded with anger.
The affected person was handcuffed and immediately surrounded by officers in a secure and controlled environment. The purpose of handcuffing a person is to restrain and make them more easily controlled. Their ability to attack someone is significantly restricted, as is their ability to defend themselves. While the fact that a person is handcuffed does not automatically make all uses of force excessive, it does change the dynamic in such a way that some uses of force will be excessive. Having three officers surrounding a single prisoner in a controlled environment further changes the dynamic by providing a wider range of control options to the officers.
At this point, the subject officer struck the affected person. This use of force was not a control tactic. There was no rational connection between this slap and any spitting since the slap would not have stopped it. The conclusion that a reasonable person would draw here is that the subject officer, already angry with the affected person, slapped him with the intent to demean and humiliate him. With no proper purpose and therefore no necessity, the force used can only be excessive.
Given the position of the ACPS, the subject officer will not be charged with a criminal offence. This report and ASIRT’s concerns will be remitted back to the RCMP for their attention and appropriate consideration of alternate methods of accountability for the conduct in question.
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.