Friday, 7 September 2018

Use-of-force investigation involving Calgary police

ASIRT - During the course of an ASIRT investigation into a Calgary Police Service (CPS) officer-involved shooting on Nov. 3, 2016, ASIRT investigators became aware of additional uses of force captured on video during the arrest of the involved 20-year-old man and immediately notified the executive director.

On Nov. 4, 2016, pursuant to the provisions of Section 46.2(4) of the Police Act, ASIRT’s executive director initiated a separate investigation into the actions of two additional police officers.

ASIRT interviewed all relevant witnesses, and obtained all documentation, audio communications and available video, including CPS patrol vehicle video from the In-Car Digital Video system (ICDV).

The circumstances surrounding the officer-involved shooting have been detailed in an earlier news release.

Following the officer-involved shooting, the injured 20-year-old man remained inside the stolen vehicle as additional officers and Emergency Medical Services (EMS) professionals were en route. They were responding to a call confirming that shots had been fired and that an officer might be injured.

Many officers arrived on scene and the situation was somewhat chaotic. Officers directed the man to show his hands or put his hands up. An officer reached into the stolen vehicle to remove the man, pulling him out by the shoulders and into an open area just behind the stolen vehicle and in front of a police vehicle.

The ICDV system in the police vehicle captured portions of what occurred next but the camera view was blocked by the police vehicle’s hood and front end, so not everything is seen on the video.

As the officer pulled the man into the area in front of the police vehicle, he tripped and fell backward, taking the man with him. A number of officers moved in to assist. On video, one of the first officers to step in delivered three closed-fist punches to the man in quick succession. The police vehicle’s front end partially blocks the view, but the reasonable inference is that these strikes were to the man’s torso. As a number of officers and the man are on the ground, another officer stepped in and administered five kicks to what would have been the approximate area of the man’s head or upper torso.

The officer who had fallen with the man regained his footing, rose and told everyone to “chill.” Following this, the officer who had previously kicked the man, stepped in and kicked the man three more times.

CPS members provided first aid to the man until EMS arrived. EMS took the man to hospital, where he was treated for four gunshot wounds. No additional significant injury was observed and it is not believed that the man was injured after police removed him from the vehicle.

The two involved officers declined to provide a statement or any information, as is their constitutional right.

Executive director Susan D. Hughson, QC, carefully reviewed the available evidence and a legal opinion provided by the Crown.

Prior to his arrest, the man had been stopped in a stolen vehicle, failed to comply with verbal commands and tried to flee the scene. In his attempt to flee, the man drove the stolen vehicle into a parked police unit and drove in a manner that placed an officer involved in the original incident at risk of death or grievous bodily harm. There were reasonable grounds to believe he had committed criminal offence(s) and officers had the lawful authority to place him under arrest. An officer is justified in the use of force in the lawful execution of his duties provided he uses no more force than is reasonably necessary.

Under the Police Act, ASIRT must forward an investigation to the Alberta Crown Prosecution Service (ACPS) when there is evidence capable of providing reasonable grounds to believe an offence was committed. In this case, while some use of force may have been subjectively and objectively necessary, some of the force used was capable of being viewed as more than what was reasonably necessary in the circumstances, particularly as it related to the kicks to the man.

As such, ASIRT sent the matter to the Crown for an opinion on whether it met the standard for prosecution. ASIRT has received the Crown opinion which finds that there would be no reasonable likelihood of conviction for any of the force used.

Having reviewed the evidence in its entirety and the provided Crown opinion, ASIRT’s executive director has made the following determinations:

Based on the evidence, it may have been difficult for officers arriving on scene to immediately distinguish whether the officer accidentally tripped and fell while pulling the man away from the stolen vehicle or was involved in a struggle that caused them to fall to the ground. It happened so quickly, in exigent circumstances, and in the context of a potentially violent offender who had already tried to avoid arrest. Without knowing that the officer had accidentally tripped, a reasonable person could have misinterpreted the situation and perceived a need to assist the officer in the control and restraint of the man. However, a recognition that force might be necessary would not justify any use of force beyond that which was reasonably necessary.

In this case, being mindful of the dynamic nature of the situation and the incomplete information available, the limited use of three quick punches or strikes by one of the first officers in a position to assist would be within the range of force that could be considered appropriate and reasonable to gain control over the man.

Assessing the use of force by the other officer, who waded into the fray already being handled by multiple officers and delivered two separate series of kicks, was more difficult. Mindful that there is no evidence of what the officer perceived nor any reason given by this officer for why this force was used, the first series of kicks might have been subjectively and objectively reasonably necessary to gain control of the man.

The greater challenge arises with the respect to the second set of kicks, administered after a pause in the action, after an opportunity for sober second thought and after officers had effectively been called off by the primary officer dealing with the man. On the available evidence, it is more difficult to see this use of force as reasonably necessary. Objectively, the actions could be viewed as unnecessary, punitive and the result of heightened emotions rather than tactical need.

ASIRT and the ACPS operate with significant independence from government and complete independence from each other, although our roles in the administration of justice are overlapping.

ASIRT does not direct the ACPS, nor does the ACPS direct ASIRT. Each agency employs a distinct and different standard to proceed. ASIRT requires reasonable grounds to believe an offence has been committed. The Crown requires both a reasonable likelihood of conviction and a determination that a prosecution is in the public interest before it will pursue any prosecution. In this case, the Crown determined that the standard for prosecution was not met. Given that opinion, no officer will be charged for offences related to the use of force on the man following his removal from the stolen vehicle.

ASIRT’s mandate is to effectively, independently and objectively investigate incidents involving police that have resulted in serious injury or death to any person, as well as serious or sensitive allegations of police misconduct.

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