Vancouver cops could face misconduct probe for 'unsatisfactory' participation in use of force investigation: IIO

Vancouver Police Department headquarters is seen in Vancouver, on Saturday, Jan. 9, 2021. THE CANADIAN PRESS/Darryl Dyck

Two Vancouver police officers who punched a drunk man in the face while arresting him have been cleared of any wrongdoing, but their colleagues who witnessed the incident may be facing a misconduct probe.

On Feb. 8, 2022, an intoxicated man "suffered multiple facial fractures and a broken rib" while being arrested on the Downtown Eastside by members of the Vancouver Police Department, according to the Independent Investigations Office.

The watchdog’s investigation, civilian director Ron MacDonald says, revealed that the extent of the man's injuries as well as how they were caused did not line up with what was initially reported by police.

"The IIO was presented initially with the bare facts that (a man) had been arrested by a group of several officers and had suffered serious injuries after falling on his face," MacDonald wrote in a report released Thursday.

"As officers were questioned, though, it became apparent that (the man) actually fell on his buttocks, and his injuries were caused by punches to his face and knee strikes to his side.”

Ultimately, the IIO found that the use of force was lawful and justified – but raised a number of other issues about how the incident and investigation unfolded.

THE INCIDENT

As the report notes, officers who are being investigated do not have to provide any information or submit to interviews. In this case, one of the two officers did provide his written report and the other "did not provide any account."

MacDonald provided a summary of the incident and the ensuing arrest based on a review of available evidence, which included witness statements, CCTV footage, and police and medical records.

Sometime in the early morning, two officers were conducting a traffic stop on East Pender Street when a man -- referred to throughout as the "affected person" or "AP" – approached.

"At the time of the incident, AP was severely intoxicated and was not behaving rationally. For reasons known only to himself at the time, he decided to involve himself in the traffic stop," the IIO report says.

When the officers asked AP to back up, he became "argumentative and then increasingly confrontational,” according to the report, then fled and was pursued by a "group of officers" and "taken to the ground.”

After AP fell onto his backside he grabbed at one of the officers' legs, close to where the officer had a gun in a "concealed carry holster," MacDonald said.

"While there is no evidence whatsoever that AP had any intentions regarding the pistol, this situation would have created reasonable concern in the officers’ minds," the report says, adding that the officer subsequently delivered "knee strikes" that likely broke AP's rib.

The use of force by that officer was not under investigation – it was what followed that was being probed.

Two officers, the report said, punched AP in the face an unspecified number of times, fracturing his nose and other bones in his face.

"In this case, the available evidence makes it difficult to prove definitively that the blows were justified," MacDonald said.

"However, it also cannot be said that the evidence shows these blows exceeded the range of what was reasonably justifiable in the circumstances."

THE ARREST

While MacDonald found that there were not grounds to forward a report to Crown counsel for consideration of charges, he did raise some concerns about the arrest itself.

"This report would be remiss were it not to discuss the issue of de-escalation and whether there was a definitive need for arrest," he said, noting that the evidence suggested the officers initially did appear to show restraint.

However, he also said that AP's behaviour before running from the police was not dangerous even if it was irrational. While the police had grounds to arrest AP for what MacDonald described as "minor offences," he also said arrest is "not a preferred approach" in cases like these.

"A very reasonable option when he ran away would have been to let him go. Yes, AP was intoxicated and verbally aggressive, but little else," the report says.

"The bottom line here is that once AP had clearly decided to leave, there was no reason for concern that he would continue to interfere with the officers or otherwise offend, and just letting him leave would have been a much better result than what occurred."

The report also specifically called into question one of the reasons that an officer gave for justifying the arrest, namely, that AP's intoxication and behaviour made him vulnerable to being assaulted or otherwise harmed by someone else in the neighbourhood.

"It loses validity when the remedy to prevent him from facing force from others means he is going to face force from the police," MacDonald wrote.

In an interview, he told CTV News he has recently begun to explicitly explore the issue if de-escalation in his reports on police use of force more often.

THE WITNESS OFFICERS

The report outlines the evidence given by three witness officers, notes that they were the only ones who saw what happened, and summarizes the problems their statements presented for MacDonald.

"Unfortunately, when it came to reporting the actions of colleagues, especially actions involving the use of force, those officers’ accounts were unsatisfactory," the report said.

"Instead of complete and reliable reports, though, IIO interviewers received accounts that were vague and inconsistent, with rather implausible gaps on the topic of exactly how AP came to be so seriously injured. Indeed, three officers initially failed to give obviously relevant evidence until pressed further during an interview. This evidence should have been disclosed when first questioned, not after being pressed for answers."

He told CTV News that the expectation of witness officers, who are required to participate in and cooperate with the investigation, is that they will be "forthright and fulsome in their accounts of what occurred."

His report notes that he did consider the possibility of referring the matter of the way in which these officers behaved to Crown counsel for consideration of criminal charges However, he did not think there were sufficient grounds.

"I did feel it was appropriate to refer the matter to the office of the Police Complaints Commissioner for determination of whether their actions might constitute a form of misconduct," he said.

MacDonald told CTV News he can't speculate about what kind of misconduct these officers may have committed – if any.

The OPCC told CTV News that this incident, as is the case whenever death or serious harm occurs, will be investigated by the office.

"Generally speaking, we suspend these investigations pending the outcome of the investigation by the IIO. Now that the IIO has issued their report, we will be able to lift the suspension, will name an external policing agency and will be providing independent, civilian oversight of that investigation," a spokesperson said in an email.

The statement did not specifically address the IIO's recommendation to probe the witness officers' behaviour but did say the office will "assess all of the circumstances, including, but not limited to, any training, policy, or misconduct allegations."

In OPCC investigations, officers cannot opt out of participating or providing information.