The BC Prosecution Service announced Thursday that no charges would be laid against a member of the Smithers RCMP involved in an-in custody fatality.
In 2015, a suspect was arrested and taken to the Smithers RCMP police station where a physical altercation occurred between the suspect and an officer.
The suspect became unconscious after another officer held the suspect around his head and neck area. The suspect was taken to the hospital and died shortly thereafter.
The Independent Investigations Office (IIO)conducted an investigation into the actions of the officer who held the suspect. The IIO’s Chief Civilian Director looked at the findings to determine if an offense had been committed and submitted its report to the BC Prosecution Services (BCPS). The Chief Civilian Director does not make recommendations on whether charges should be approved.
In this case, the BCPS concluded that the available evidence did not meet the office’s charge assessment standard. The BCPS was unable to prove, beyond a reasonable doubt that the officer committed a criminal offence or used excessive force while enforcing the law.
A Clear Statement explaining the reasons for not approving the charges has been made public by the BCPS. The statement contains a summary of the evidence gathered during the IIO investigation and the applicable legal principles. This is provided to assist in understanding the BCPS’s decision not to approve charges against the officer involved in the incident.
The charge assessment was conducted by a Crown Counsel with no prior or current connection to the officer.
The Summary of the decision is as follows:
The BCPS applied The Charge Assessment Guidelines in reviewing all Reports to Crown Counsel(RCC).
The Criminal Justice Branch applied a two-part test to determine whether criminal charges would be approved and a prosecution initiated:
a) there must be a substantial likelihood of conviction based on the evidence gathered by the investigating agency; and
b) a prosecution must be required in the public interest
Under the branch policy, “a substantial likelihood of conviction exists when Crown counsel is satisfied there is a strong, solid case of substance to present to the court. A prosecutor will consider whether the evidence gathered by the investigating agency is likely to be admissible in court; the weight that would likely be given to the admissible evidence by a judge or jury; and the likelihood that viable, not speculative defences will succeed”.
In making a charge assessment, Crown Counsel reviewed the evidence gathered by investigators in light of the legal elements of any offence that may have been committed. Crown counsel must also remain aware of the presumption of innocence; the prosecution’s burden of proof beyond a reasonable doubt; and the fact that under Canadian criminal law, a reasonable doubt can arise from the evidence, the absense of evidence, inconsistencies in the evidence or the credibility of reliability of one or more of the witnesses. The person accused of an offense does not have to prove that he or she did not commit the offence. Rather, the Crown bears the burden of proof from beginning to end.
The relevant law charges considerations were Manslaughter, Criminal negligence and Legal Justification.
The legal justification refered to Section 25(1) and Section 26 of the Criminal Code.
Case law interpeting these sections recognizes that police officers may need to resort to force in order to execute their duties but also that the courts may guard against the illegitmate use of power by the police against members of our society, given its grave consequences. The degree of force that a police officer may use is constrained by the principles of proportionality, necessity, and reasonableness.
If a subject is charged with a criminal offence based on an allegation of excessive force, a police officer does not bear a legal or evidentiary burden to prove that one of the Criminal Code’s justification provisions apply. Rather, the Crown must prove beyond a reasonable doubt that the relevant justification provision is not applicable. To do so, the Crown need only disprove that one of the required consitutent elements of the provision is not met on the evidence.
Two Use of Force reports were prepared to assist in analyzing whether the subject’s officer’s actions in seizing the suspect in the neck and head were reasonable under the circumstances.
Experts cited in the report concluded the actions of the subject officer were consistent with the applicale policies and with the officer’s training in the use of force.
Through the application of the Law to the Facts, Manslaughter, Unlawful Act and Criminal Negligence, were considered when assessing the course of the struggle between the subject and the subject officer as he applied pressure to the subject’s head and neck area.
The legal charge of Manslaughter would need to determine whether in causing the suspect’s death the subject officer committed an unlawful act or was criminally negligent.
Also, the available evidence did not establish beyond a reasonable doubt that the suspect’s death was caused by an unlawful Act. Accordingly, the subject officer’s use of force was legally justified under s.25 of the Criminal Code.
In addition, the evidence provided did not establish that the force applied by the subject officer was negligent on a criminal standard of proof.
The evidence provided did not establish that the subject officer intentionally applied force that he knew or that was likely to cause death or grievous bodily harm. The force applied by the subject officer to control the suspect was otherwise reasonable and proportionate to the level of threat the suspect posed to the officers and that force was reasonably necessary to control the suspect.
At trial, the subject officer would be entitled to rely on s.25 of the Criminal Code as a complete defence.
In the end, the evidence did not establish a substantial likelihood of conviction for any criminal charges and therefore no charges have been approved in respect to this incident.