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ASIRT rules police officer’s use of lethal force permissible in this case

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From the Alberta Serious Incident Response Team (ASIRT)

Edmonton officer acted reasonably in fatal shooting

On March 9, 2017, the Alberta Serious Incident Response Team (ASIRT) was directed to investigate the circumstances surrounding an Edmonton Police Service (EPS) officer-involved shooting that occurred the same day that resulted in the death of a 55-year-old man.

Shortly before 1:30 p.m., multiple 911 calls were made regarding a possible impaired motorist driving a minivan on 149 Street that had entered onto the Whitemud Freeway. The make, model, and vehicle’s licence plate number were provided to police. Two independent callers to police both described the driver, who was the lone occupant of the van, indicating that he looked “drunk.” Police were advised that the van had earlier hit a snowbank and a curb, was being driven in and out of lanes, “swerving all over the road,” including down the middle of two lanes and had nearly collided with a vehicle. The van was reportedly “all over the road” and at one point, went off the roadway. As the van approached the 119 Street exit, it almost collided with another vehicle, and both callers advised that other vehicles were “swerving” to avoid the van. One of the callers advised police that the van was driving at speeds between 30 and 120 km/h. The driver took the freeway exit ramp southbound on 119 Street, followed by one of the callers.

As the driver went south on 119 Street, swerving along the way, he turned right at 23 Avenue to proceed westbound, driving close to and over the curb, and nearly colliding with concrete blocks on a small bridge over a ravine. It was reported that the van looked like it was about to crash. After turning onto Hodgson Way, driving over the curb along the way, the driver turned into a cul-de-sac, stopped in the middle of the road, then returned to Hodgson Way at a higher speed. The driver then turned into Holland Landing, at which point a marked EPS vehicle pulled up, so the caller who was following the van went on his way, leaving the driver to the police. He did not observe any interaction between police and the driver of the vehicle.

The lone EPS officer, in full uniform, had arrived on scene in a marked police SUV. He observed the van, matching the earlier provided description, coming directly towards him, driven by a large man, also matching the description provided. The van stopped and the officer pulled the front end of the police SUV up to the front end of the van, slightly to the driver’s side to block the vehicle.

The officer exited his vehicle and approached the van. As he did so, the man exited the van against the officer’s commands to remain in the vehicle. The officer noted signs of the man’s impairment including the smell of liquor, glazed eyes, difficulty focusing, and swaying from side to side. When questioned, the man said he had not been drinking, but slurred his words. The officer told the man he was under arrest for impaired driving, and ordered him to turn around and place his hands behind his back. The man asked, “what do you want me to do?”, and the command was repeated. When the officer tried to take control of the man’s arm, the man went to reach for something at his waist. The officer instructed the man to keep his hands visible, and stepped back to call for assistance. This call took place approximately 50 seconds after the initial traffic stop.

The officer again instructed the man to show his hands. At this point, the man produced a hunting knife in his right hand. The man was described as raising the knife in front of his body and pointing it at the officer. The officer attempted to gain distance but the man followed the officer. The officer slipped on the roadway, covered in fresh snow, and fell to his back. As he tried to get up, the man fell on top of him, still holding the knife in his right hand. The officer yelled several commands for the man to “stop” and “get back”, and tried to push him away. The officer kicked the man away to gain space, and continued to shout commands to drop the weapon and “get back”. When the man again advanced, still holding the knife, the officer discharged four rounds from his service pistol from his position on the ground. He saw the man fall away to the left. The officer rose to his feet, and called in “shots fired” stating “he came at me with a knife”. This second call was approximately 20 seconds after the first call for assistance.

The situation between the officer and the man had deteriorated extremely quickly. The time between when the officer indicated that he was “off” with the subject, meaning he was going to go deal with him, and the time that he reported shots had been fired was one minute, 14 seconds.

The knife was still in the right hand of the man, who had fallen on the snow-covered roadway. The officer holstered his firearm, moved the knife away from the man and attempted CPR until other officers arrived on scene.

No civilian witnesses saw the actual shooting, but several were present and made observations immediately after the shots were fired. Upon hearing the shots, two witnesses exited their residence. One of these witnesses reported that just prior to hearing the shots fired, he heard yelling but could not hear what was being said. The officer was described as breathing heavily, had snow on his face and in his hair, and was described as looking like he had been in “a battle”. A photograph that was taken at the time by one of the witnesses showed snow on the back of the officer’s patrol jacket and pants. Another civilian witness reported he heard shots, looked out his front window and saw a man lying on the street and a uniformed police officer standing within a foot of the person. He advised investigators that he watched the police officer holster his sidearm, walk towards the man, remove a knife from the man’s hand to move it approximately three feet from the body towards the sidewalk.

The knife recovered from the scene matched the branded sheath found attached to the man’s belt.  A DNA profile from the handle of the knife matched the DNA profile of the man. The man was also known to carry a hunting knife. The man was 55 years of age at the time of his death. He held dual Russian and Canadian citizenship. He had been an Edmonton resident for years and operated his own business and worked as a sub-contractor. He was not working on March 9, 2017 because of inclement weather. He has no prior criminal record. By all accounts, the man’s conduct with the officer on March 9, 2017 was out of character.

Upon autopsy, the man’s blood alcohol level was determined to be at least three and a half times over the legal limit of 80 mg/%.

As established by the high blood alcohol results, the egregious driving pattern observed by civilians, the observations of the civilian witnesses and the officer as to the physical signs of impairment, the man was grossly intoxicated at the time of his death. This level of intoxication would not only have resulted in physical signs of impairment but would also have compromised thought processes, judgment, perception and a person’s intellectual and emotional functioning.

Under the Criminal Code, a police officer is authorized to use as much force as is reasonably necessary to perform his or her lawful duties. This can include force intended, or likely to cause, death or grievous bodily harm if the officer reasonably believes that such force is necessary to defend themselves or someone under their protection from imminent death or grievous bodily harm. Further, any person, including a police officer, is entitled to use reasonable force in self-defence or in defence of another person. An assessment of the reasonableness of force will consider different factors, including the use (or threatened use) of a weapon, the imminence of the threat, other options available and the nature of the force (or threat of force) itself.

The officer had more than reasonable grounds to believe that the man was operating a motor vehicle while his ability to do so was impaired by alcohol. He was lawfully placed and acting in the lawful execution of his duty, and had both the grounds and the authority to place the man under arrest.

Based on the available evidence as a whole, it is very clear that the conduct of the man presented a very real risk of death to the officer. The situation escalated at the point when the man twisted away and produced the knife. In response to these actions, the officer attempted to reposition himself to reduce the threat, and had issued numerous commands to the man to stop and to drop the weapon.  The man was non-compliant with those commands, and initiated a physical confrontation with the officer, despite the officer’s attempts to create distance, and did so while armed with a knife. In the circumstances, the officer’s conduct was clearly objectively and subjectively reasonable and necessary. When assessing the danger posed to the officer by the man, and factors such as the presence of a weapon, the immediacy of the threat to the officer, and the lack of time, distance or the availability of other alternatives, it is evident that the action taken by the subject officer, while tragic, was reasonable in the circumstances. As such, the subject officer’s use of lethal force, having regard to the protections provided in the Criminal Code, was permissible and did not constitute a criminal offence.

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. This mandate includes incidents involving discharge of a firearm that would likely have resulted in serious injury or death had the person been struck.

After 15 years as a TV reporter with Global and CBC and as news director of RDTV in Red Deer, Duane set out on his own 2008 as a visual storyteller. During this period, he became fascinated with a burgeoning online world and how it could better serve local communities. This fascination led to Todayville, launched in 2016.

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Alberta

ASIRT investigations concluded on fatal officer-involved shooting involving the RCMP.

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Incident investigation report from the Alberta Serious Incident Response Team (ASIRT)

Introduction

On December 22, 2022, the Alberta Serious Incident Response Team (ASIRT) was directed pursuant to s. 46.1 of the Police Act to investigate a then non-fatal Royal Canadian Mounted Police (RCMP) officer-involved shooting. The shooting of the affected person (AP) was reported to have happened during an interaction with him, as a result of him being a suspect in a complaint of a man with a gun.

While AP initially survived, he died of complications from the shooting the following day.

ASIRT’s Investigation

ASIRT’s investigation was comprehensive and thorough, conducted using current investigative protocols and principles relating to Major Case Management. Information from civilian witnesses, the subject and a witness officers, and importantly video recordings provided sufficient information to determine whether the force used by the subject officer during this incident was reasonable.

Circumstances Surrounding the Officer-Involved Shooting

On December 01, 2022, Maskwacis RCMP received a call reporting that a male [AP] had been drinking and left the caller’s house with a gun. AP was shooting the gun in the country (believed to be the area around the residence). Two RCMP officers responded.

Witness officer (WO) located AP walking on the road with a rifle. AP walked toward WO’s marked police vehicle with the rifle pointed at the vehicle/WO, while WO was seated in the driver’s seat. WO then exited his vehicle with his carbine rifle and moved to the rear of his vehicle while AP kept the rifle pointed at the police vehicle. The subject officer (SO) arrived on scene, but came from the opposite direction. AP turned around and walked toward SO with the barrel of the rifle pointed upwards. SO exited his police vehicle with his service pistol drawn and walked toward AP while he
repeatedly provided verbal direction to AP to drop the firearm. AP and SO were walking toward each other; at that time AP still had the barrel of the rifle pointed upward. As SO and AP got within approximately five meters of each other, AP lowered the barrel of the rifle and pointed it directly at SO. SO fired multiple rounds and struck AP with four rounds causing AP to stumble, drop the rifle and fall to the ground. AP initially survived the shooting and was transported to an Edmonton hospital, where he underwent emergency surgery. The following day, AP succumbed to his injuries.

Analysis

The subject officer was lawfully placed and acting in the execution of his duties in dealing with AP as a person who was the subject of a complaint about him being in possession of a firearm and shooting it off.

The Use of Force

Under s. 25 of the Criminal Code, police officers are permitted to use as much force as is necessary for the execution of their duties. Where this force is intended or is likely to cause death or grievous bodily harm, the officer must believe on reasonable grounds that the force is necessary for the self-preservation of the officer or preservation of anyone under that officer’s protection.

A police officer’s use of force is not to be assessed on a standard of perfection nor using the benefit of hindsight.

With the benefit of hindsight, time for detached reflection and knowledge of the ultimate outcome, it is easy to speculate about how things could have been done differently. That is not the standard, however, against which an officer’s conduct is measured. The question is, applying principles of proportionality, necessity, and reasonableness, whether the force used falls into a range of possible reasonable responses.

Proportionate Response

Proportionality requires balancing a use of force with the action to which it responds. Here, the subject officers were faced with an individual that was armed with a gun and pointing it in their direction. As such, the response by the subject officers in using their respective firearms to shoot AP was proportionate to the threat of death or grievous bodily harm that he reasonably posed to both of them.

Reasonably Necessary

As set out previously in this report, AP presented as a lethal threat to both SO and WO given his actions in pointing his rifle at them. While WO did not shoot during this incident that does not impact the analysis of SO’s actions. Under the circumstances as then faced by SO, no other use of force options were reasonably available for attempted use. The use by SO of his firearm to incapacitate this lethal threat was reasonably necessary. Given the above, the defence available to SO under s. 25 of the Criminal Code would apply.

Conclusion

Under s. 25 of the Criminal Code a police officer is justified in doing what he or she is authorized to do and to use as much force as is reasonably necessary where he or she has reasonable grounds to do so. Force intended to cause death or grievous bodily harm is justified if the officer believes, on reasonable grounds, that the force was necessary to prevent the death or grievous bodily harm of the officer and/or any other person. The analysis under s.34 of the Criminal Code leads to a similar finding that subject officer’s actions were lawfully permitted.

After a thorough, independent and objective investigation into the conduct of the subject officers, it is my opinion that they were lawfully placed and acting properly in the execution of their duties. There is no evidence to support any belief that any officer engaged in any unlawful or unreasonable conduct that would give rise to an offence. The force used was proportionate, necessary and reasonable in all the circumstances.

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Alberta

Alberta requests more control over provincial immigration system

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Alberta is requesting more control over its provincial immigration to address its skilled workforce shortage, including increasing Ukrainian evacuee participation in the job market.

Premier Danielle Smith has written a letter to Prime Minister Justin Trudeau asking him to re-evaluate his government’s decision limiting the number of allocations for Alberta’s provincial nominee program in 2024. Last week, the federal government informed the province it would only receive 9,750 such allotments – which is the same number of allocations Alberta received in 2023 and is less than the 10,140 for 2024 the federal government had originally allocated.

As of February 2024, Alberta accounts for just under 12 per cent of Canada’s population, but it leads the nation in net employment growth, with 42.8 per cent of the country’s employment gains between January and February 2024. By not providing the requested increase to Alberta’s provincial nominee allocations, the federal government is restricting the province’s ability to keep up with its growing labour market demands, especially as it relates to integrating Ukrainian evacuees into Alberta’s job market.

“Alberta is growing and that is good news. Since January 2023, more than 100,000 new jobs have been created in our province and our employment rate has led the country even longer. At the same time, we continue to experience labour shortages that could be resolved by welcoming skilled workers from around the world, including evacuees from Ukraine, many of whom have the exact skills that our job market most needs. Alberta has long been the economic engine of Canada and we are once again requesting Ottawa respect section 95 of the Constitution and let us welcome the skilled individuals we need into our province on our terms.”

Danielle Smith, Premier

With Alberta’s population growth at levels not seen in four decades, Alberta’s Provincial Nominee Program is best placed to address the province’s unique immigration and economic goals.

Part of Alberta’s population growth has resulted from Russia’s invasion in Ukraine on February 24, 2022. Since that time, Alberta has welcomed a significant number of Ukrainian evacuees to the province. While it is anticipated that many will return to Ukraine following the war, Alberta is also expecting a number of families to apply for permanent residency via the Alberta Advantage Immigration Program. An increase in the number of allocations from the federal government would assist these new Albertans to fill positions in the province’s workforce.

“Immigration is key to Alberta’s ability to address labour shortages and to grow our economy. This limitation imposed by the federal government on our provincial nominee program will be a very difficult pill to swallow, not only for businesses that need this skilled labour but also to the many Ukrainian evacuees who have the skills we need and wish to stay permanently in Alberta.”

Muhammad Yaseen, Minister of Immigration and Multiculturalism

Quick facts

  • The federal government through Immigration, Refugees and Citizenship Canada sets provincial immigration nomination limits. It also approves all permanent resident applications.
  • Alberta maximized its 9,750 nomination allocations in 2023, with a total of 10,029 nominations issued within the federal government administrative buffer.

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