ASIRT Concludes Serious and Sensitive Investigation Involving CPS

By Gateway Gazette

Apr 20

On August 19, 2014, the Director of Law Enforcement instructed ASIRT to commence an investigation into an allegation related to the handling of a missing persons complaint in relation to the 18-year-old man.

Additionally, the family reported the 18-year-old had made statements to them prior to his disappearance that he had been assaulted by Calgary Police Service (CPS) members during a recent arrest. This allegation became part of ASIRT investigation.  Our investigation is complete.

On July 6, 2014, a father reported his 18-year-old son as a missing person. CPS opened a missing person file and a patrol unit was dispatched to begin the investigation. On July 24, 2014, the body of the young man was found in a water retention pond east of 140 Aberfoyle Close N.E. in Calgary. The manner of death was deemed to be a homicide and the case remains unsolved to this date.

Family members felt that CPS had failed to take appropriate action on the missing person complaint, and that the failure to properly investigate was the result of racial bias and profiling.

It was also alleged through the media that the young man had been roughed up or beaten by a member or members of CPS during an arrest prior to him going missing. It was alleged that after the young man had been released from police custody, he came home and told different family members about an assault by police. Upon being released, minor injuries were observed on his face.

On August 15, 2014, CPS sent a notification under section 46.1 of the Alberta Police Act to the Director of Law Enforcement (DLE). The DLE directed ASIRT to investigate.

Missing Person Investigation

ASIRT’s investigation into the CPS missing person investigation was comprehensive, complex, and presented unique challenges. While it is relatively easy to identify errors that occurred in the handling of the file, attempting to identify why those errors occurred was a much more complex task.

Evidence gathered by ASIRT included examination of CPS documents and records related to the missing person investigation, interviews with all CPS investigators who had duties related to the investigation and the interviews with the family members of the young man. A review of CPS policy related to missing persons complaints that was in effect at the time of this incident was also considered. ASIRT investigators reviewed 26 random CPS missing persons files that were investigated shortly before and after this missing persons investigation, involving persons between the ages of 18 to 28 year olds including indigenous and caucasian subjects. An additional two files were reviewed that ultimately involved the victims of a homicide or suicide. ASIRT was also provided a very detailed report from a CPS member concerning deficiencies CPS had identified in the handling of the missing person’s investigation.

The evidence gathered in the ASIRT investigation clearly demonstrates that the initial stage of this investigation was beset by a series of assumptions, errors, and oversights by CPS personnel.  Several of the missing person policy protocols were not followed.  As a result, there was minimal investigation of the missing person report, no follow-up or file continuity, no accountability or file ownership, a failure to document relevant new information, and most importantly, no police-initiated communication with the family.

After July 16, 2014, the file proceeded appropriately. Whether race was a factor in this investigation was specifically addressed in the interviews of key witness officers. Questions related to the missing person were consistent with what were to be gathered in every missing person investigation. This information is to be gathered in all missing persons complaints. The recordings of the interactions between CPS personnel with family members did not display content or tone that was disrespectful, nor did any of the correspondence among CPS officers that was reviewed.

The conclusions that can be safely drawn from the detailed review of 28 unrelated missing persons files are that the missing person policy protocols were not uniformly or consistently followed in several cases, regardless of whether the subject was indigenous or caucasian. To put it more bluntly, assumptions, errors, and oversights were made in many of the investigations regardless of race.

In this missing person case, it is apparent that a series of misjudgments and errors made by a number of CPS officers at different junctures contributed to the main failings identified in the initial stage of the investigation. When the acts or judgments of each officer, however, were individually assessed, none can be fairly characterized as “a serious or marked departure from the standard of care expected” or as “conducted so far below accepted standards as to amount to an abuse of the public’s trust in the investigator”.

Even if the impugned acts and judgments identified did meet the test for establishing conduct required for the offence of breach of trust by a public officer, the evidence does not support a finding that the officers acted with the required intent at the relevant time. The investigation yielded no evidence of the presence of some form of dishonest or nefarious intent, that is, some form of corruption or partiality, or oppression. The presence of racial bias or profiling could certainly constitute partiality in this context and was specifically addressed in the ASIRT investigation. No evidence supporting this claim was found. Indeed, the investigation tended to support an inference that racial bias or profiling was not a factor.

The evidence does not establish reasonable grounds to believe that a criminal offence was committed by any officer of the CPS in relation to this missing person investigation. As such, no officer will be charged with respect to this aspect of the ASIRT investigation.

Assault

Police records show that on July 2, 2014, the young man was arrested by CPS officers for trespass by night and a break, enter, and theft in a residential garage. Civilian witness evidence suggested that the young man had been trying to open the patio doors of a residence when the homeowner confronted him. The young man ran from the back yard and jumped a fence into the yard of a nearby residence. It was in the detached garage of this residence that the young man was apprehended, in possession of property that had been in one of the vehicle in the garage.

The man was given commands, which he followed, and was arrested, handcuffed and taken into custody. At this point, he was cooperative and calm. One officer interviewed indicated that at the scene he observed superficial scratches on the man’s face, described similar to those one would get from going through bushes. As he was taken to a police van for transfer to CPS Court Services Section (CSS), the young man passively resisted placement into the van. He failed to follow verbal commands to get into the van, he refused to move and when officers attempted to move him, he became limp. The evidence of officers on scene indicated that he did not actively resist or become violent. Officers ultimately had to physically place him in the van. The holding compartment of the van has grainy or course material affixed in strips to the floor to prevent slipping.

At the time of the young man’s arrest, there was compelling evidence to provide the officers with reasonable grounds to believe offences had been committed. As such, they were acting within their lawful authority to arrest the young man and take him into custody. The officers were clearly lawfully placed and in the proper execution of their duty.

The young man was transported to CSS. The period of time from his arrival at CSS and his release from custody an hour and a half later is memorialized in its entirety on video obtained from CSS. There is only video, not audio. It is clear that upon his entry into CSS, the young man has a dark mark or abrasion visible on the right side temple area. There were no other observable injuries. The young man was processed and then released at 6:55 a.m. At that time, the same dark mark or abrasion was seen on the right side temple area. There are no other observable injuries. From the whole of the evidence, one can reasonably conclude that the injury to the young man’s face was sustained prior to contact to arrival at CSS. It is possible that the injury could have been sustained prior to contact with police, but it is also possible that the abrasion was caused when the young man was placed in the van for transport.

A fulsome review of the evidence, and in particular, the videos from CSS indicated that specifics of an assault in custody as described by the young man to his family did not happen. There are many possible explanations as to why this might be. That having been said, this review resulted in the identification of a very brief physical contact in custody with the young man that, while different than what was initially alleged, would provide evidence sufficient to constitute reasonable grounds to believe that an assault had been committed.

Having been brought into CSS, the young man was in the process of being lodged in a holding area until he could have the opportunity to speak to counsel and address bail. In the video, the young man can be seen removing personal items and pieces of clothing that would be held until his release from custody. In the video, the young man was standing with his back toward the camera, and the officer can be seen facing him a few feet away. On the video, the young man seemed calm, his movements somewhat slow and he appeared to be cooperating. After removing other items, it appeared that the young man was asked to remove a chain on his neck. ASIRT investigators understood this chain to have been very personal and important to the young man.

As the young man proceeded to start to remove the chain, the officer was observed to put his hands on the young man. The officer placed the young man in a hold that would resemble a vascular neck restraint, with the officer turning the young man so that he was now facing the camera, standing behind the young man, with his arm across the young man’s shoulders and neck, his inside of his elbow on the young man’s neck. There is no observable resistance on the part of the young man. It appears that the officer might have said something to the young man before he quickly released the hold and the young man continued to remove his personal affects to be lodged. There is no evidence to suggest that this was used as a carotid control technique designed to render the young man unconscious, as it does not appear to have been tight, it is maintained for such a brief, effectively fleeting time that it was not be effective as the vascular neck restraint, and it did not appear to have had any physical impact on the young man other than to momentarily hold him in place in front of the officer. When it is over, both the officer and the young man returned to what they were doing with no observable impact. The young man does not appear to have been injured during this contact.

First, addressing the observable injury observed on the face of the young man, it is not possible to prove, even on a balance of probabilities, whether the young man had sustained the injury earlier in the morning or in his flight from the first residence, before contact with police. Even if it was assumed that the injury was sustained while the young man was placed in the van, it was lawfully justified. The officers were acting in the execution of their duties and minimal force was used to place him in the van. If the injury was sustained during this process, it was not unreasonable.

In law, an assault is defined as the touching of a person in any manner without consent. Police officers have certain protections under the Criminal Code that permit force to be used so long as it is done in the execution of their duties, it is reasonably necessary to affect their lawful purpose as long as no more force is used than is necessary to fulfill these purposes. In this case, it is clear that at the time this contact occurred, the officer is in the lawful execution of his duties. He is doing his job. The issue is whether this momentary contact with the young man was necessary. On its face, we had a cooperative, calm young man who appeared to be following instruction. There is no identifiable reason that can be seen on the video that would require the observed use of force. In these circumstances, the officer’s conduct would not fall under the protections under the Criminal Code. Without that protection, the conduct constitutes physical contact without consent that would amount to an assault.

The fact that it was fleeting and very minor does not change the fact that it would provide reasonable grounds to believe an assault was committed and that was the finding of the Executive Director. As such, the investigation was forwarded to the Alberta Crown Prosecution Service (ACPS) for an opinion. That opinion was received and reviewed by the Executive Director. It was the opinion of the Crown that the matter would not meet the Crown standard for prosecution. Given the ACPS position, the officer will not be charged.

The young man’s contact with police that morning ended with him being escorted to a desk where upon signing his release documents, he collected his personal items and was escorted to the back door and released. The man was last seen on video walking from the CSS parking lot to the street. He appeared to be in good spirits and, aside from the abrasion to the right temple area, uninjured.

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.

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