ASIRT Concludes Investigation of RCMP and EPS Use of Force

On July 28, 2017, the Alberta Serious Incident Response Team (ASIRT) was directed to investigate the circumstances surrounding an arrest on July 25, 2017 by both a Royal Canadian Mounted Police (RCMP) member and members of the Edmonton Police Service (EPS). During the arrest, a 21-year-old man sustained multiple facial fractures to his right orbital/nasal bones.

On July 25, 2017, at approximately 2145 hrs, an EPS detective, on patrol and operating an unmarked vehicle, observed a Red Dodge Ram truck travelling at an extremely high rate of speed, weaving in and out of traffic and passing vehicles on the shoulder. These manoeuvres suggested that the driver might be checking to see if he was being followed by police. Additional resources, including Air 1, Canine and Tactical, were requested. Additional information provided to officers and assisting units was that the vehicle likely contained stolen long guns.

A protracted pursuit ensued, lasting approximately 60 minutes and passing through residential, commercial and rural areas throughout north Edmonton and Strathcona County. The driver operated the truck at grossly excessive speeds, drove on shoulders, passed other civilian traffic in these areas and “blew” through red lights. The criminal flight came to an end after a spike belt shredded the tires on the truck and the driver’s off-road attempt at evasion failed as multiple police vehicles moved in. The man’s driving pattern was highly dangerous, purposefully so, putting anyone in his path at grave risk.

Once the truck came to a stop, the man exited the vehicle with his hands out, moved a short distance from the vehicle and lay prone on the ground. By the time the first officer approached, the man was lying prone on the ground, not moving, his hands behind his back. Air 1 had clearly broadcast that the driver was out, with his hands up and “proned out.”

Until the man was stopped, a reasonable person would have viewed the man’s conduct as nothing less than egregiously dangerous – dangerous enough to present a risk of grievous bodily harm or death to anyone in the man’s path, civilian or police.

To provide the best summary of the scene that would have presented at the time that the pursuit ended: an unknown man who had made very determined and dangerous attempts to evade apprehension, who had purposefully put countless people at risk throughout and was believed to possibly be in possession of a firearm(s), was placed in a position where he was effectively cornered and appeared to have proned himself out on the ground. At that point, it was not possible to know whether the man had a firearm or any other weapon on his person.

The majority of the pursuit and the man’s arrest was captured on the Edmonton Police Service’s Air-1 FLIR video. While highly probative, the video should not be considered in isolation, as it has significant limitations and provides an incomplete picture of what would have been experienced on the scene as it was occurring. For instance, the video does not have sound, so the chaotic nature of the event is somewhat lost. Additionally, the heat signatures on this type of video tend to blend, making it difficult to clearly see who is doing what or what exactly is occurring. Aside from the first kick, described below, it is difficult to say with certainty whether certain blows made contact – and if so, where and with whom. It must also be remembered that the incident occurred in a dark rural area. Headlights from the EPS tactical vehicles would have provided some illumination, but they were moving even after the man stopped the truck and some officers’ views would have been blocked.

The first officer to have contact with the man was an RCMP member of the Canine Unit who, along with his police service dog, had been involved in the pursuit with members of the Edmonton Police Service and Air 1.

As the RCMP member stopped his vehicle, Air 1 broadcast that the man had stopped and was exiting his vehicle with his hands up. The RCMP member quickly exited his vehicle without the police service dog and approached the man, who was lying on the ground on his stomach with his hands behind his back. On the video, the RCMP member can be observed to be moving quickly with little to no hesitation. He directly approaches the man’s head and delivers what appears to be a single kick to the man’s head. The kick is forceful enough to cause the man’s head to snap significantly to the opposite side. Based on the scene as it presented itself, the kick was not tactically sound, and there was no observable necessity to use this level of force.

After the kick, the man begins to struggle – not unexpectedly, given the blow that he has just sustained – but to the EPS officers now coming in, the situation could and would have appeared much more dynamic.

As members of the Edmonton Police Service approached, they would have seen the man and the RCMP member struggling. On the video, the members can be seen using various forms of force, including knee stuns, kicks and strikes to the torso in an effort to subdue the man and place him in handcuffs. The situation is contained within approximately a minute, but prior to that there is a bit of a melee involving the man, the RCMP member and the members of the EPS tactical team. Throughout the struggle, multiple persons yell and shout directions to the man to show/surrender his hands.

In his report, the RCMP member failed to mention the initial kick. In subsequent interviews, he indicated that he did not recall kicking the man or, alternatively, indicated that he was concerned about the possibility that the man had firearms/weapons in his waistband and might be “baiting” officers, so he used a distraction strike kick. The absence of any mention of the kick in the first report and the subsequent inconsistent statements raised concerns. Further, the explanation of the decision to administer a distraction strike kick made no sense in the context of a belief that the man might have a firearm on him – particularly given the availability of a police service dog and the assistance and cover of the other arriving police officers.

EPS tactical members provided fulsome reports and statements. The issues they identified, including the risk that the placement of the RCMP vehicle did not effectively block the suspect vehicle, concerns about the possible presence of firearms, the high-risk nature of the call, the man’s conduct up to that point, and the uncontained, dark, rural nature of the environment, were all objectively reasonable. All members detailed their own use of force in the event, and their accounts were reasonably consistent with the video. Their recollections were not perfect, but as they described their use of force, and subsequently viewed the video and discussed the force used, they came across as credible.

That being said, one further kick occurred at the end of the event, while other officers were standing up and walking away and the man appeared to have been contained, that seemed unnecessary. While the officer subjectively believed, in the chaos that unfolded in a matter of seconds, that the man was not contained, objectively this use of force is questionable.

Once the man was handcuffed and contained, police located two long-barrelled .22-calibre firearms and additional property believed at the time to be stolen. It was also determined that the man had an outstanding warrant and was on various forms of judicial interim release for a variety of offences and was in violation of many of the conditions of release.

Based on a review of the evidence, ASIRT’s Executive Director, Susan D. Hughson, QC, concluded that there were reasonable grounds to believe an offence had been committed and that the force used, at least as it relates to the two identified uses of force above, was excessive and could support prosecution.

Given the requirements of the Police Act, the matter was forwarded to the attention of the Crown. It was the conclusion of the Crown that there was no reasonable likelihood of conviction. The opinion considered the correct law. It is not ASIRT’s role to make the decision to prosecute for the Crown, nor does ASIRT direct the Crown. As such, ASIRT must defer to the Crown decision on whether they are prepared to prosecute. Given the position of the Crown, no charges will be pursued in relation to the police use of force during this incident.

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.