Common sense judgement

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

More positive signs of change at the IIO

Earlier this week the Independent Investigations Office (IIO) released a report that analyzed their investigation in the Nov. 8, 2012 police involved shooting at the Starlight Casino in New Westminster by Delta Police Cst. Jordan MacWilliams.  The analysis was conducted by retired RCMP Supt. Doug Kiloh who has much Major Case Management (MCM) experience but he also had expertise in ERT tactical procedures. Which, I might add, no one involved in the actual investigation had.

On October 20, 2014 MacWilliams was charged with second degree murder. The charges were finally stayed on July 14, 2015.

Regular readers will know that much has been written on this case in which I was very critical of the IIO’s investigation and questioned their competence in many aspects and on many occasions.

The Delta Police Association wrote a letter of complaint to the IIO essentially saying their investigation was flawed and also questioned their competence. The IIO, to their credit, then commissioned the review by Kiloh.

Kiloh’s 15 page report is very critical of the IIO but does note that in the intervening time a number of things have changed. But he also makes a number of recommendations involving training, investigative techniques, evidence management, MCM protocols and enhanced training.

Kiloh also focused on two salient events from the IIO investigation. One was that investigators never spoke to the female taken hostage that morning. I surfaced her and interviewed about six months after the charge was laid against MacWilliams. I also surfaced the fact that the IIO never asked casino security for their video. Casino security burned a DVD for the New Westminster police and the coroner. They got their copies but the IIO never  asked.

When I asked why the IIO never bothered to touch these basic but critical things to understand what happened, I was told that the IIO doesn’t concern themselves with what led up to the Affected Person’s interaction with police but just the actual interaction. I was stunned.

Well, evidently Kiloh was equally stunned. He deals with these failures and others in his report.

The new Chief Civilian Director, Ron MacDonald, put out a statement corresponding with the release of the Kiloh report. In it he said, “I have accepted the conclusions and recommendations outlined in his report, which is attached, in their entirety.”  He goes on to say than many of the recommendations have already been undertaken.

He then said this: “As the Chief Civilian Director of the IIO, I am focused on ensuring our investigations are carried out in as excellent and timely a manner as possible. We will always work to improve where necessary. This report and our response to it is an example of how the IIO is prepared to receive feedback and acknowledge weaknesses, recognize the need to improve, and make the needed changes.”

Well, that’s diametrically opposed to the first CCD, Richard Rosenthal

Considering the new CCD said he accepted the conclusions and recommendations “in their entirety,” I sent the following question yesterday to Marten Youssef, the IIO’s Director of Public Engagement:

If, in fact, the IIO accepts the report and recommendations “in it’s entirety,” that leads me to a very salient question. In the Starlight Casino investigation I surfaced the female hostage who was not interviewed by the IIO and the fact that casino security had burned a DVD of all of their video for the IIO but was never asked for it. Kiloh refers to both these matters as failings.

At the time when I questioned these things I was told by the IIO, I believe it was you, that was because the IIO was only interested in the limited focus of the police interaction with the Affected Person and not in circumstances that led up to that interaction.”

Youssef forwarded that enquiry to the new CCD who responded himself.

Here is his pasted response intact:

I have reviewed your email regarding the report about the Starlight Casino shooting. That report is about a five year old investigation, and the report notes several issues with that investigation. While it was important for us to release the report to publicly acknowledge those issues, and to demonstrate transparency to the public, at this point  my goal is to focus on the approach the IIO takes going forward.

In that sense you refer to the fact that the whole of the circumstances of an incident ought to be relevant in our investigations, not just the immediate interaction between the police and the AP.

To put it simply, I agree with you, and that is indeed the approach we take in our investigations. Not only can that context assist in an assessment of police actions, it will help explain the entire fact situation to the public.

I hope that addresses your questions.

Take care.

Ron

Well, well. Rosenthal never responded to my questions in his four years as CCD, let alone admit I was correct on any issue let alone such a salient one.

There are positive winds blowing at the IIO with this new guy at the helm.

One last point, Earlier today the Criminal Justice Branch released a report saying there would be no charges in an event at West Shore RCMP jail in which the arrestee, very drunk, was fighting with three members and taken to the floor when she sustained an injury. The whole thing is on video as you might imagine.

This occurred four years ago and the decision was only released today. Four years. The new CCD talks about timely investigations. Clearly this was not a priority of the previous administration. So, far he is talking the talk and walking the walk with two recent events that have taken place since he assumed the mantle were cleared in two months and one month respectively.

There were a couple more in the past couple of weeks. We shall see how the new IIO does with those.

I’m hopeful right now that MacDonald has forced the IIO to turn a corner. Early signs are promising.

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Leo Knight

@primetimecrime

Justice delayed is justice denied

There’s an old legal maxim which says “Justice delayed is justice denied.” The phrase has been attributed to William E. Gladstone who was Prime Minister of the UK for 12 years spread over four terms in the mid to late 19th century.

But the concept goes back to the Magna Carta of 1215, clause 40 which reads, “To no one will we sell, to no one will we refuse or delay, right or justice.”

Yesterday the Criminal Justice Branch (CJB) issued a media release saying there would be no charges against a member of the RCMP resulting from an in-custody death that resulted from an incident on February 14th, 2015. The man died in hospital on February 21st, 2015. I shook my head and read it again. Could it really have taken nearly three years to reach a conclusion in the case?

What could possibly be so complicated that it would take that long for a process to determine what happened?

The circumstances seem fairly straight forward.

Jacobus Jonker, 53, was arrested by Smithers RCMP resulting from a domestic dispute. His daughter called 9-1-1 saying her father was drunk, holding a knife and was “really aggressive.” She remained on the line with the dispatcher reporting that he had gone to his gun safe and taken out a shotgun, that he may be suicidal and was concerned he would shoot her.

When the responding officer arrived, later to be the so-called subject officer, Jonker was standing in the door. The officer called for him to walk towards him. He did with his hand in his coat pocket saying “shoot me.” While he was aggressive and non-compliant, the officer managed to take him into custody without using lethal force, using OC or pepper spray. Good job I say.

At the detachment, the next chapter in the arrest unfolded in the cells. Jonker became aggressive and attacked the officer’s supervisor who had joined him in cells to assist with the booking along with the jail guard. He tried to reach for the supervisor’s gun and then lunged at him physically. He was grabbed essentially in a headlock by the arresting officer and taken to the ground where a ground fight ensued while the supervisor tried to get handcuffs on the man and the guard tried to control his legs. Oh, and I should mention Jonker weighed 288 lbs. and neither officer topped 190.

He was a rugby player and coached the sport at the local high school. Suffice to say he was a physical challenge for the officers.

During the ground fight Jonker went limp, the officers flipped him over and observed he wasn’t breathing. They immediately began CPR and called EHS. Jonker was airlifted to Victoria where he died in hospital a week later.

Now, I should add that ground fighting is part of every police officer’s training. In the RCMP members are in the gym wearing judo gi’s. They sit back to back on the floor mat and on the instructor’s call, begin fighting, using any method, trick or tactic to get the other guy to tap out. There are no rules to ground fighting, save and except to get control. The object is to win, to survive. Cops don’t start fights, but their very life depends on their ability to finish them.

It’s tragic that Jonker died. It’s equally tragic this member had the Independent Investigations Office (IIO) investigation and possible criminal charges hanging over his head for as long as this. 34 months from the date of the incident to the day CJB finally issued a statement saying he would not be charged with manslaughter or criminal negligence causing death.

I should also add there was no mystery in any of this. There was a CCTV video system in operation in the detachment cell area and virtually all of the confrontation was captured and available for analysis.

Two police use of force experts were called in by the IIO, one with the RCMP but a different detachment and the other from the Calgary Police Service. Both said the use of force was appropriate and consistent with their training.

What could possibly take 34 months – nearly three years – to determine that this officer was simply doing his job? Jonker got “horribly drunk” as stated by his wife. He was aggressive and violent as indicated by his daughter in her 9-1-1 call and the fact the family had to flee the house. He was uncooperative and aggressive in the cells. He tried to take the supervisor’s gun and attacked that officer. He was pulled off of him by the subject officer and taken to the floor where to control the big man there was a ground fight the likes of which occurs in every jurisdiction in this country on a daily basis. I wish I could say it’s unusual, but it’s not.

In most of these incidents police are able to gain control of the suspect. But, sometimes bad things happen and occasionally people die as a result. But it is always the result of their own choices. The choice to use drugs, alcohol, use violence against the police, being fat are the usual contributing factors. That’s reality.

But there’s nothing complicated in any of this. What could possibly have taken 34 months for the IIO to submit a report to crown and crown to review to determine this officer did his job in accordance with the law and with his training?

Why keep the family of the deceased and the officer and his family hanging for so long? It is unprofessional and reeks of incompetence or worse, a fruitless effort to find something, anything, with which to charge a police officer.

This isn’t justice.

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Leo Knight
@primetimecrime