IIO considering reopening investigation into officers involved in beating death of Myles Gray

The jury in the Coroner’s Inquest into the death of Myles Gray determined he died by homicide.

"I felt very validated. This is what my family needed. It was the best possible outcome we could have got at an inquest,” said Myles Gray’s sister Melissa.

The classification of homicide at the inquest carries no weight in the criminal justice system and the Vancouver police officers involved in the beating that killed Gray have never been charged.

In March of 2019, the Independent Investigations Office forwarded a report to Crown prosecutors for consideration of charges, including manslaughter, aggravated assault and assault causing bodily harm, against four of the officers, but Crown declined to charge them.

“In this case, the BCPS has concluded that the available evidence does not meet the BCPS’s charge assessment standard,” the BC Prosecution Service said in December of 2020.

“The only witnesses to the physical altercation and restraint of Mr. Gray by the police were the attending members of the VPD. Based on the evidence available, the BCPS is not able to prove, beyond a reasonable doubt, that the officers committed any offence in relation to the incident.”

The BCPS also said the officers involved provided “incomplete” and “inconsistent” accounts of what happened, making it difficult to “determine a coherent narrative of events.”

But information that came to light at the inquest could leave some of the officers in legal jeopardy with the potential for criminal charges at some point, if the IIO decides to reopen the investigation.

Gray, a 33-year-old Sunshine Coast man, was in Vancouver for work on Aug. 13, 2015 when he left his truck at a job site and wandered away.

People began calling 911 to report Gray was acting erratically and threatening people.

One woman said Gray, who she did not know, had sprayed her with a garden hose.

Const. Hardeep Sahota, a Vancouver police officer who was working alone in her police van that day, located Gray one block east of Boundary Road in Burnaby.

Sahota told the inquest she got out to speak to Gray, but he was acting in a threatening manner, so she retreated to the safety of her police van.

She testified that Gray then unsuccessfully attempted to stop her from closing the van door.

Sahota said she called for backup, and Gray made his way into a residential yard and she lost sight of him.

Const. Kory Folkestad and his partner, Const. Eric Birzneck, who was a VPD crisis negotiator at the time, were the next two VPD officers to respond.

“I also stated to the members that this male is aggressive and he is going to fight,” Sahota said she told her colleagues.

Birzneck testified that before the three officers entered the yard to confront Gray, Birzneck pulled out his extendable baton and concealed it behind his back.

The officers testified they went into the yard and demanded that Gray get down on the ground – and when he didn’t, Birzneck used pepper spray on him.

Birzneck testified that’s when police went “hands on” with Gray, and a violent altercation ensued.

As the fight was underway, more VPD officers arrived, with several testifying they kicked and punched Gray and used knee and baton strikes on him.

In testimony at the inquest, each of the seven officers claimed they did not know what their fellow officers were doing as the violence continued, so they could only speak about their own actions.

“Due to my adrenaline and exhaustion, I could only see Mr. Gray. I was very target-focused,” Const. Josh Wong told the inquest.

Birzneck also testified he used what police call a vascular neck restraint on Gray, who an autopsy revealed had a fractured larynx among his many injuries, which also included a brain bleed, fractured bones in his face and ruptured testicles.

The struggle would not end until Gray stopped breathing while handcuffed on the ground with his ankles tied together with a device known as a hobble.

According to testimony from Const. John Gravengard, once Gray was in cuffs and hobbled at the ankles, he and three other officers continued to hold him down for another four to seven minutes until one of the officers realized that Gray had stopped breathing.

Despite resuscitation efforts lasting about 40 minutes, Gray would die in the yard.

“I think there’s a good argument that it should be looked at again. Significant things are different today than were before,” Ian Donaldson, the Gray family lawyer, said when asked if any of the officers should be charged criminally.

“Those factors are important factors in assessing the overall circumstances.”

CTV News reached out the BCPS to ask if they would reconsider the decision not to charge any of the officers involved.

A spokesperson for BCPS said there is a process in place for re-assessing charges that depends on the investigating agency resubmitting the file to Crown prosecutors for another charge assessment.

In an interview, Ron MacDonald, civilian director of the IIO, said the agency is assessing the evidence from the inquest and will make a decision about the investigation once that process is complete.

"We want to examine that carefully. So, we'll go through that process and we'll determine whether or not that ought to lead to a determination to effectively reopen our investigation and consider resubmitting the matter to Crown,” MacDonald said.

MacDonald specifically mentioned the toxicology report and testimony about Gray’s cause of death from the forensic pathologist who conducted the autopsy.

"This is amazing that they're going to try to push forward with it,” said Melissa Gray. “Because things have changed significantly and that needs to be addressed."

In the meantime, all seven officers that took part in the beating remain on the job and some have special assignments.

One is a VPD use of force instructor and another works in Car 87, which responds to calls about people in mental health crisis.