Crime & Punishment

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Posts Tagged ‘Criminal Justice Branch

Common sense judgement

with 6 comments

In the wake of the discussion last week of the manslaughter charge against RCMP Cst. Jason Tait, as a result of his actions stopping a drunk driver who was refusing to stop, let’s consider some things. He took the action he took to protect the citizens of Castlegar. He did his duty at great risk to himself, much like police officers do every day across this country.

Things happen in the blink of an eye and police have to react to what is unfolding with two objectives; to eliminate the perceived threat and to protect life, which includes their own.

Tait was charged by the Criminal Justice Branch (CJB) three and a half years after the event occurred. It took the Independent Investigations Office nearly two years to do their investigation and a further 16 months for CJB to review it before filing a criminal charge against Tait. That is unconscionable.

I think to appropriately consider this, it is instructive to look at the decision of the now retired Provincial Court Judge Donald Gardner in the prosecution of Delta Police Cst. Vicken Movsessian who was charged with careless use of a firearm after another lengthy IIO investigation. 

The incident happened on Nov. 7, 2013 and the court decision was rendered in December of 2016. Suffice to say it has been underreported.

The officer was seconded to CFSEU, a Joint Forces Operation working organized crime. On the night in question, CFSEU had surveillance on a vehicle they believed contained a gang member wanted on over thirty warrants, several of which involved firearms offences. The suspect was believed to be seeking a weapon with which to conduct a home invasion. 

During the surveillance the vehicle stopped at a residence of a known gang associate. A passenger got out and went into the carport and retrieved something from the rafters. Police surveillance units could not determine what the object was other than it fit into the hand of the person who retrieved it. 

After the vehicle drove away, it was decided to stop the vehicle in what is called a Code 5 takedown, a high-risk traffic stop with multiple police vehicles blocking a suspect vehicle and officers with drawn weapons ordering vehicle occupants out and on the ground where they are secured. Or, at least, that’s the plan. 

During the execution of the stop, Movsessian was focussed on the man in the rear seat the police believed to be their primary target. The suspect dropped his hand towards his hip and Movsessian fired once, striking the suspect. He then dragged him out of the car and secured him. Apparently, at some point in time Movsessian said he was sorry. He recognized the person he had shot was not their target but rather another related drug dealer, a 31 yr-old named Michael Minchin.

Evidence at trial summed up by the trial judge said this: Cst. Movsessian yelled ”Police, show me your hands.”  “He then saw the target in the backseat lean forward, then turn sideways towards the window. Initially he saw that person’s hands in the air and his face pressed against the window.  His face was illuminated by the nearby lighting.  He had his hands in the air, then suddenly he could not see his hands anymore, as he was leaning back. He seemed to be reaching for something, and the officer thought he was reaching for a firearm.”

The search of the suspect and the vehicle turned up drugs but no weapon. 

The Independent Investigations Office (IIO) was contacted and an investigation was begun.  Seven months later a Report to Crown Counsel was submitted. It should be noted that Cst. Movsessian never give a statement to investigators as is his right. 

The IIO submitted a Report to Crown Counsel some seven months later and it took the Criminal Justice Branch nearly a year later to approve a charge of Careless Use of a Firearm against Cst. Movsessian. How they arrived at that is anyone’s guess. One can only assume it was because of the apology, but that is only a guess. 

At trial the Crown advanced the theory that Cst. Movsessian forgot his training to keep his index finger on the trigger guard and accidentally shot Minchin. Defence argued no such thing. Defence argued that Cst. Movsessian “acted intentionally in discharging his firearm and his conduct did not amount to careless use of a firearm.”  Indeed, Cst. Movsessian testified during the four day trial to that effect. 

The judge relied on the evidence of a use of force expert, RCMP Insp. Chris Butler who testified about reaction time for police officers with a weapon drawn and the perception of a threat. Judge Gardner said in judgement, “The summary of the above two points means that officers are almost always behind the action/reaction time curve. If an officer waits until he or she is able to discern with complete certainty that an offender does in fact have a gun, the officer will be shot at 100 percent of the time before they respond.”

The judge also displayed a remarkable amount of common sense when he said, “I also note that this trial has occurred over four days. The submissions of counsel alone lasted more that two hours, an I have not lost sight of the fact the accused did not have that amount of time to decide whether or not to shoot.”

“I have concluded that Cst. Movsessian had reasonable grounds to believe, at the moment he fired his weapon, his life was in danger due to the unpredictable actions of Mr. Minchin. As such, Cst. Movsessian’s actions were not a marked departure from the standard of care of a reasonably prudent officer in these circumstances.”

And with that he dismissed the charge. This is important for the IIO and CJB to understand the decision and the fact Gardner J. took judicial notice of threat perception / reaction times for police and the fact officers have milliseconds to decide shoot/don’t shoot. The fact he also took judicial notice of that when he referred to the amount of time for counsel submissions compared to Cst. Movsessian’s decision to shoot.

One hopes the judge assigned to the charge against Cst. Tait also considers these salient facts as well. One also hopes the IIO reads this decision and thoroughly digests it as they proceed in their investigations going forward. 

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Leo Knight

@primetimecrime

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Written by Leo Knight

April 26, 2018 at 5:23 pm

RCMP officer charged with manslaughter for doing his job

with 50 comments

Two days ago the Criminal Justice Branch released  information saying that as a result of an investigation by the Independent Investigations Office into a police involved shooting that occurred “during an attempted traffic stop on January 29, 2015,” RCMP Constable Jason Tait of the West Kootenay Traffic Unit was now charged with manslaughter.

There was precious little other information. All the media reporting I could find on the original incident at the time yielded little more.

An attempted traffic stop? There’s got to be much more to the story. So, I started poking around to try and find out what happened.

It turns out the man who was shot, Waylon Edey, 39, who lived in Yahk, BC had been drinking in a Nelson bar and was so drunk he was cut off by the bar staff. They told him not to drive or they would call the police. He told them to “Go f**k themselves.” He got in his pick up truck and bar staff called 9-1-1.

The next call comes from staff at a drive-thru restaurant who report Edey is drunk and has open liquor in his vehicle, a 5,000 lb. Ford F-150 and is heading toward Castlegar.

Tait was off shift and had just arrived home. He’d heard the call but didn’t think too much about it until his supervisor called him and requested he assist looking for the reported drunk driver.

Now, it should be noted that Tait was a member of “Alexa’s Team” a select group of 335 police officers, who “have made an extraordinary contribution in reducing the number of alcohol and drug affected drivers.” The team was formed by the parents of Alexa Middelaer who was killed at the age of four by a drunk driver in Delta, BC.. All of the officers involved took it very personally and did all they could to prevent another Alexa tragedy.

Tait didn’t hesitate when he got the call. He jumped back in his police SUV and drove out of town looking for the pick up truck. He spotted it near Ootschinia, just outside Castlegar on Hwy #3. He turned and activated his emergency equipment. Moments later the suspect vehicle, driving at about 90 KMH entered the Kinnaird Bridge at the entrance to town.

On the other side of the bridge were strip malls, restaurants and typically, at 8 o’clock in the evening, a lot of pedestrian traffic.

Tait felt he had to stop the impaired driver before he reached that foot traffic lest another tragedy happen.

I should also add that Edey has a history of drunk driving. At the time of the incident he was on probation and his license was suspended. He was also facing charges from another earlier incident from Cranbrook when he tried to run an RCMP road check stop and two members had to dive out of the way to avoid getting hit by him. He was listed on police computers as a flight risk and dangerous to police.

Neither of those officers were spoken to by the IIO during their investigation.

Tait overtook the suspect vehicle on the left and spun his SUV in the so-called attempted traffic stop. He got out of his vehicle which had all the lights activated, drew his weapon and moved to the rear of the driver’s side. Edey showed no sign of slowing down. When he was about 15 feet from the police vehicle Tait fired several shots and started running laterally towards the side of the bridge thinking he might have to jump over, contemplating the 150 ft. drop to the river.

The pickup truck hit the police vehicle on the passenger side toward the rear and continued rolling forward. Tait ran after the vehicle and stabbed the rear tire to disable the vehicle and found Ebey slumped over the wheel.

As a trained paramedic and EMT, he got him out of the vehicle and began emergency first aid and called EHS. Ebey later died of a single bullet wound in hospital.

The IIO had the file for nearly two years and after submitting their report to Crown another 16 months ensued before a decision was made to charge Tait. The CJB attempted to justify the long delays in their press release saying: “The investigation and charge assessment process were protracted due, in part, to the complexities of the evidentiary issues in the case and the requirement for further investigation and analysis.”

Well, nonsense.

There was only one gun and it was not a mystery that required ballistics testing. The only testing needed was a tox screen to determine the BAC (Blood Alcohol Content) of Ebey. Something that should only take a week or two.

I am told they sought and received a report from an RCMP Use of Force expert who gave the shooting a clean bill of health. The IIO then sought a second opinion from a Calgary Police Service UOF expert who said there were issues with the level of force used.

I spoke with a retired Vancouver Department UOF expert who told me that based on the circumstances he didn’t see an issue. He also cast some doubt on the quality of the CPS expert used by the IIO.

Tait had a duty to stop Edey, a known drunk driver with a history of violence toward police as evidenced by the Cranbrook charges, before he got to the edge of town where the pedestrian traffic was at risk. The public expect their police will do all they can to protect them. Police are duty bound to take acceptable risks in their job. That is what Tait did. He should have a medal pinned on his chest not be before the criminal bar.

Tait was off for a month after the incident. He went through the usual protocols and was given a clean bill of health and following the RCMP review of the shooting, he was returned to active duty. He remained there for 29 months until Crown started making noises that he was going to be charged. An NCO in the RCMP I spoke to thinks this good, young, productive officer may never return to duty given all this.

Tait has spent his whole adult life in the service of this country. Prior to joining the RCMP in 2007, he was in the army and was deployed to Bosnia and then saw action in Afghanistan.

He did his job and this is the thanks he gets. The more I learn of this case, the angrier I get.

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Leo Knight

@primetimecrime

Written by Leo Knight

April 6, 2018 at 12:25 am

More mystery in another IIO cop prosecution

with 41 comments

After the first week of testimony in the charge of careless use of a firearm against Cranbrook Cst. Rick Drought, a 15 year veteran of the RCMP at the time, I am still left wondering why this charge has been laid in the first place. A week into it and I have no inkling what it is the Crown thinks it can prove that adds up to criminal behaviour.

What’s even more puzzling is that when the charge against Drought was first announced on August 8, 2013, the charge was ‘intentionally discharging a firearm into a motor vehicle knowing a person was in the vehicle and intentionally discharging a firearm while being reckless as to the life and safety of another person.’

Those charges were new to the Criminal Code in 2009 and were designed to prosecute gang shootings not police officers in the execution of their duty. It carries a mandatory minimum sentence of five years in prison for each count. In the government background announcing the amendments it specifically said, “One of the main purposes of the bill is to facilitate the battle against organized crime, and to that end, it amends the Criminal Code.”

So, with that in mind, let’s have a look at the facts in the case.

In the early morning hours of Oct. 2nd, 2012, 25-yr-old career criminal Nicholas John Bullock, accompanied by his 17-yr-old girlfriend, violently carjacked two folks driving a white Chevy Malibu in the parking lot of the Coquitlam Superstore.

They drove the car until they ran out of gas outside of Yahk, BC. They flagged down a passing motorist and promptly violently carjacked the hapless good Samaritan. They then drove towards Cranbrook, BC where Mounties were responding to the reported carjacking. It should be noted they believed the suspect was armed. Cst. Drought took up the pursuit in the area of Elizabeth Lake.

The suspect drove the hijacked Toyota 4 Runner into the woods on a rural acreage at the top of Victoria Avenue. Drought got out of his police car likely believing the suspects would abandon the vehicle and try to lose their pursuer in the woods.

He had only moved a short distance in front of his cruiser when the SUV came out of the woods lit up and accelerating right at the police officer. He reacted in the blink of an eye. In the space of 2.5 seconds Drought fired nine shots into the vehicle, seven through the windscreen and two through the passenger side window as he sidestepped the vehicle according to the firearms investigator who testified.

Clearly, Drought feared for his life.

Three of his shots hit the suspect, one in the upper body and two in the left wrist and he was taken into custody.  Bullock would later plead guilty to a number of charges and was essentially sentenced to two years less a day after time served was taken into consideration. He has a lengthy criminal record dating back to 2005 for a host of offences including robbery.

One would think that would be the end of things. But not so for police officers in British Columbia since the inception of the Independent Investigations Office (IIO).

Sherman Mah from the IIO testified on Thursday that he estimated the distance between Drought and the SUV when he began shooting was approximately 14 metres or about 45 feet. He didn’t actually take any measurements because he said this was only their second case and they didn’t have the ability to transport any equipment from Vancouver or frankly, any equipment to transport. No, really, he actually said that.

So what did he do? Well, he used a diagram provided by the RCMP and super-imposed that over a printout from Google Earth. You can’t make this stuff up.

The next day, the scene was reconstructed for the jury – yes, this is a jury trial – and the distance appeared to be much less. Much, much less, apparently, somewhere between five and six metres or about 20 feet.We won’t know the specific distance until the RCMP crime scene folks testify, but let’s call it 20 feet, give or take. So, the car was travelling at about 30 KPH and accelerating towards the officer. How much time would you think it would take to cover that 20 feet?

Exactly.

Drought reacted as anyone would facing that threat would and fired his weapon, all shots hitting in the driver’s compartment as intended. Bullock told the IIO investigators that he wasn’t really going to run over the officer, but he understood why the officer fired.

The IIO investigators who conducted the investigation were surprised that the Chief Civilian Director, Richard Rosenthal, forwarded the case to Crown. The CCD does this whenever he feels a crime MAY have been committed. This is a dangerously low threshold to meet and normally common sense takes hold and no charges are laid. In this case common sense left the room and a Senior Crown Counsel in Victoria overrode local Crown Counsel and laid the ridiculous charge against a police officer in the execution of his duty that was intended by Parliament for use against gang bangers doing drive-bys.

This is a war on police not civilian oversight as envisioned by the government resulting from the flawed Braidwood Inquiry.

At some point the ridiculousness of this charge must have dawned on someone at Criminal Justice Branch and the charge was amended to “Careless use or storage of a weapon,” under section 86 of the Criminal Code.

To prove this charge the Crown must establish that the accused’s conduct “constitutes a marked departure from the standard of care of a reasonably prudent person.” Wait, what?

Yup, this charge is aimed at the average owner of a firearm who contravenes a regulation under paragraph 117 (h) of the Firearms Act.

This is nuts. Drought has been off duty on administrative leave for three years, still earning his salary but providing no benefit to the citizens of Cranbrook who pay that salary. For what? To try and prove some nebulous, chicken-shit charge that relates to bureaucratic regulations?

Police officers are authorized to use force, including lethal force, to do their duty. They may use lethal force if they feel their life or that of another is in danger. But, the same criminal code that gives a police officer this power also holds them accountable in Section 26 which states: “Every one who is authorized by law to use force is criminally responsible for any excess thereof according to the nature and quality of the act that constitutes the excess.”

The test in this or any other case facing IIO investigators should simply be this: Did the officer perceive he or she was in danger? Was he or she entitled to use lethal force? Was the force used excessive in the circumstances?

That’s it. That is the role envisioned for the IIO. Rosenthal has seemingly made it his role to use whatever tools at his disposal to go after scalps of cops.

The trial in Cranbrook against Drought is scheduled to run another week and a half before it goes to the jury. What an absolute waste of time and money. Not to mention the toll it has taken on yet another cop in BC just trying to do his job.

One can almost hear the strains of Judy Collins singing, “Send in the clowns.”

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Leo Knight

@primetimecrime

Written by Leo Knight

October 12, 2015 at 10:17 pm

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