In the Matter of the Police Act, R.S.A. 2000, c. P-17.

And
In the Matter of the Police Service Regulation, Alta. Reg. 356/1990

And in the Matter of Complaints and Disciplinary Proceedings Against

REG. NO. xxxx CONSTABLE B.B. &

REG NO. xxxx CONSTABLE A.A.

Pursuant to a Notice and Record of Disciplinary Proceedings

Issued July 11th, 2018

Decision

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Procedural Background
On September 21st, Constables A.A. and B.B. were cited with several disciplinary offences.
Constable B.B. was alleged to have:

Count #1

Discreditable Conduct, contrary to section 5(1)(e) of the Police Service Regulation, as further
defined by section 5(2)(e)(viii) of the Police Service Regulation.

Details of Allegation

On or about September 23, 2015, at the Hope Mission in Edmonton, Alberta, you were present
when C.C. involuntarily fell backwards down a stairway. You did not take steps to determine the
identity of any witnesses to that event, or properly note, document or advise a supervisor of this
event, until after you became aware that other police officers were called to the Hope Mission,
thereby committing Discreditable Conduct contrary to section 5(1)(e) of the Police Service
Regulation, as further defined by section 5(2)(e)(viii) of the Police Service Regulation.

Count #2

Discreditable Conduct, contrary to section 5(1)(e) of the Police Service Regulation, as further
defined by section 5(2)(e)(viii) of the Police Service Regulation.

Details of Allegation

On or about September 23, 2015, at the Hope Mission in Edmonton, Alberta, you were present
when C.C. involuntarily fell backwards down a stairway. You failed to render appropriate
assistance to Mr. C.C., and further or in the alternative failed to advise the Hope Mission staff of
that incident or contact Emergency Medical Services, thereby committing Discreditable Conduct
contrary to section 5(1)(e) of the Police Service Regulation, as further defined by section
5(2)(e)(viii) of the Police Service Regulation.

Constable A.A. was cited with 3 counts:

Count #1

Unlawful or Unnecessary Exercise of Authority contrary to section 5(1)(i) of the Police Service
Regulation, as defined by section 5(2)(i)(ii) of the Police Service Regulation.

Details of Allegation

On or about September 23, 2015, at the Hope Mission in Edmonton, Alberta, you applied force
to C.C., causing him to involuntarily fall backwards down a stairway. It is alleged that that use of
force was inappropriate in the circumstances and constituted Unlawful or Unnecessary Exercise of

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Authority contrary to section 5(1)(i) of the Police Service Regulation, as further defined by section
5(2)(i)(ii) of the Police Service Regulation.

Count #2

Discreditable Conduct, contrary to section 5(1)(e) of the Police Service Regulation, as further
defined by section 5(2)(e)(viii) of the Police Service Regulation.

Details of Allegation

On or about September 23, 2015, at the Hope Mission in Edmonton, Alberta, you were present
when C.C. involuntarily fell backwards down a stairway. You did not take steps to determine the
identity of any witnesses to that event, or properly note, document or advise a supervisor of this
event, until after you became aware that other police officers were called to the Hope Mission,
thereby committing Discreditable Conduct contrary to section 5(1)(e) of the Police Service
Regulation, as further defined by section 5(2)(e)(viii) of the Police Service Regulation.

Count #3

Discreditable Conduct, contrary to section 5(1)(e) of the Police Service Regulation, as further
defined by section 5(2)(e)(viii) of the Police Service Regulation.

Details of Allegation

On or about September 23, 2015, at the Hope Mission in Edmonton, Alberta, you were present
when C.C. involuntarily fell backwards down a stairway. You failed to render appropriate
assistance to Mr. C.C., and further or in the alternative failed to advise the Hope Mission staff of
that incident or contact Emergency Medical Services, thereby committing Discreditable Conduct
contrary to section 5(1)(e) of the Police Service Regulation as further defined by section
5(2)(e)(viii) of the Police Service Regulation.

On August 8th, 2018 Mr. CRANNA entered 3 exhibits and both officer’s counsel, Mr.
DANYLUIK, denied the allegations. The matter was adjourned to October 10 th, 2018 for
hearing.

Exhibit 1 – Memorandum appointing me as Presiding Officer,

Exhibit 2 – Memorandum appointing Mr. CRANNA as Presenting Officer,

Exhibit 3 – Notice and Record or Disciplinary Proceedings

On that date, the hearing resumed with opening remarks by the Presenting Officer. Further
exhibits were offered and accepted.

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 Exhibit 4 – Binder of reference material
Exhibit 5 – Use of Force policy,
Exhibit 6 - Reasonable Officer Response Policy,
The Presenting Officer described the context of this matter. This matter involves an incident at
the Hope Mission, Edmonton, AB in September, 2015. Constable A.A. applied force to an
aboriginal man, C.C., who them fell backwards down a flight of steps. The allegations continue
that neither constable took steps to identify witnesses, properly note or document the incident nor
advised a supervisor until after learning other police service offices had been called to respond to
the Hope Mission. Further, neither officer offered appropriate assistance to Mr. C.C. nor advise
either EMS or the staff at the Hope Mission as to what had occurred. The entire incident was
over in approximately 10 minutes and there is some video of the events.
The issue for decision is three-fold. First, did Constable A.A. apply appropriate force in the
circumstance? Second, did both officers offer appropriate assistance once force was applied?
Third, did the officers take the appropriate and necessary investigative and communicative steps
advise a supervisor of the incident to engage applicable use of force assessments by the police
service?
Based on a more detailed review and discussion with counsel, the allegations against Constable
B.B., at the Chief’s direction, were to be withdrawn.
Counts 1 and 2 against Constable B.B. were withdrawn.
The next matter was with respect to efforts to locate Mr. C.C. Despite best efforts the Document
Service Section was unable to serve the Notice and documents upon him. The efforts were
detailed in a document accepted as the next exhibit.
Exhibit 7 – Efforts made by the Document Service Section to serve Mr. C.C.,
The officers were escorting a second gentleman to the Hope Mission, one D.D. Service of
documents was again attempted without success and it was determined that he had passed away
in September, 2017.
Exhibit 8 – efforts to locate Mr. D.D. and his certificate of death.
Efforts were made to locate a third person, E.E., but there were no supporting documents to
indicate the unsuccessful attempts to locate and serve him. In fact, the Presenting Officer could
not confirm whether or not service had occurred.

Evidence

Testimony of Ms. F.F.

Ms. F.F. was sworn and advised she currently resides at Edwardson House, a residence for
women in recovery after completing the Hope Mission Wellspring program. Wellspring is a

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Christian addictions recovery program. In 2015, she was residing at the Hope Mission. On the
night in question, she was smoking in the “back cage” and saw a white police van pull up and
two officers exited it. They were approached by a native man, ornery, talking back at the
officers and making their lives miserable. After a brief time, one of the officers strolled over to
the man whose back was at the stairs and pushed him. She assumed the man went down the
stairs. She reported the incident to the intake officer in the Mission and then to someone on the
main desk.

She was located in a fenced area next to the stairway and entrance to the basement of the
Mission. There was an aboriginal man with the officers and others in the area of the stairs to the
“snake pit” – the basement detox room entrance.

One of the other men in the area – the one who had been ornery with the officers – was swearing.
She did not know him. She could not hear what the officers may have been saying. She
believed it was after 10 p.m. it was dark except where there were lights. She could see the
aboriginal man and he did not seem to make a move towards the officers. She could not recall if
the man raised his hands or fists. The man spoke in an angry and sarcastic tone. The officer
casually approached and gave the man a push, two handed. It seemed to her that it must have
been a strong push to get the momentum she saw.

She saw the man who was pushed later, thought his name was “Cardinal or something” and that
he identified himself as the man who was pushed and that his back hurt. She told him she would
report the incident.

Mr. DANYLUIK was told on cross examination that the witness had given the man a few
cigarettes. The witness agreed she had seen intoxicated persons stumble and be unsteady on
their feet and lose their balance due to relatively minor pushes.

She agreed that the angry and sarcastic man may have been “somewhat aggressive” towards the
officers.

The alley was dark and she did not see anyone else with the officers when the tall man was
pushed down the stairs. When she met the man later, he was intoxicated. She did not know if
the police officers knew she was in the corner because of the darkness and she did not engage
with the officers.

On redirect, the witness clarified that the aggressiveness of the tall man was verbal and not
physical.

I asked the witness how long after was it when she saw the tall man and was told it was about an
hour later.

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Before moving on to the next witness, the Presenting Officer submitted that he and Mr.
DANYLUIK had agreed to waive Constable G.G.’s testimony in favour of admitting his police
witness statement as found in Exhibit 4, Tab G.

Testimony of Constable B.B.

The constable, a defence witness, was sworn and examined by Mr. DANYLUIK as part of an
accommodation for the witnesses and efficient use of hearing time. Constable B.B. began with
the Edmonton Police Service in August of 2014 and is now a patrol constable in northeast
division. He began in 2014 with 6 months training, followed by 6 months in downtown division
with a training officer and then onto northeast division. Previous experience was as a project
coordinator for Elections Ontario, 7 years, and three years of a 4-year Aerospace Engineering
program at Ryerson University. He is 35 years old. At the time of the incident he had about 1
year of service.

On the day of the incident, he and Constable A.A. were assigned to the “wagon” – a police
vehicle used to transport disorderly or intoxicated people to shelter. He was working the 5 p.m.
to 4 a.m. shift. They were tasked to deliver D.D. to the Hope Mission for a pre-arranged bed.
He had been to the Mission before and was driving the van. At night, all drops were at the back
to the entrance known as the “snake pit.” They arrived at the Mission at 0002 hours on
September 23rd. They arrived, parked and assisted Mr. D.D. out of the van.

A tall, aboriginal man with a white blanket approached the van looking drunk and aggressive.
The area was described as “a very high crime area” with “a lot of drug and alcohol users.” He
states that he asked the man to step back while they dealt with Mr. D.D. A Promise to Appear
was issued and Mr. D.D. was free to go. He and Constable A.A. began escorting Mr. D.D. to the
stairwell as he was intoxicated and “a bit vulnerable.”

As they walk to the stairwell the tall man with the blanket was next to another native male, later
learned to be Mr. C.C. Constable A.A. was in the lead and the witness was with Mr. D.D. The
two males appeared intoxicated, were extremely belligerent, “trying to instigate a fight” and
“very aggressive.” They were saying they had been waiting three hours to get a bed. Constable
A.A. was trying to calm them and trying to “defuse the situation” but it did not appear to be
working. He stated that Mr. C.C. looked as though he may punch Constable A.A. and was
clenching his fists and “he’s very aggressive.” Constable A.A. “gently” pushed Mr. C.C. with
two hands to “gain some distance.” Mr. C.C. fell backwards “slowly - - like, it was like a tree
that just got chopped, just slowly kind of fell backward. The witness continued by stating that
“immediately what I saw Constable A.A. do was offer him help and an explanation of why he
did what he did and try to render medical assistance to C.C.”

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Constable B.B. then stated that Mr. C.C. was swearing at Constable A.A. and telling him to
“fuck off, I don’t need your help, get the fuck out of here.” It seemed to the witness that Mr.
C.C. was “pretending like he was, I guess, unconscious, so to speak, but he wasn’t….you could
tell he was, like, acting.” He continued by stating he offered assistance to Mr. C.C. but was
rebuffed. He saw no visible injuries, blood or bruises and that Mr. C.C. appeared conscious,
eyes open and talking. He did not feel he was injured and both officers departed the scene. He
did not notice any witnesses.

Once in the van, the witness indicated he and Constable A.A. discussed calling a supervisor even
though they perceived the use of force to be a Category 1, that is, force applied with no injury
with the only requirement that it be documented in a notebook. Constable A.A. agreed that they
would advise a supervisor and would take that step as he was the one who used the force. He
made some notes and completed his report at shift’s end. His report is at Exhibit 4, Tab B and
his notes at Tab D. The report was entered on EPROS and submitted to the squad sergeant who
can review it in real time.

Under cross-examination by Mr. CRANNA, the witness confirmed the incident occurred about
13 months after he had been hired. He had completed basic and field training and was partnered
with Constable A.A. temporarily. He had been in Downtown Division and delivered persons to
the Hope Mission previously and was familiar with the “snake pit.” He believed the intoxicated
street people were unpredictable.

He described Mr. E.E. as intoxicated with an aggressive manner and approaching him with “a
malicious purpose.” He did back off when told to do so. He then joined Mr. C.C. near the top of
the stairs.

The witness agreed with the suggestion of the Presenting Officer that police officers need to be
aware of their surroundings.

The witness did not always escort subjects to the basement level entrance. His actions varied
depending on circumstances.

His recollection was that the fall backwards was slower than that seen in the video. He agreed it
appears some force was used…he did not just fall over. Constable A.A. needed to create
distance as he was trapped with the van right behind him. He did not think the push was that
hard.

He stated that Mr. C.C. seemed to be acting and that his eyes were open. He stated that he
believed intoxication, not injury, was why Mr. C.C. remained on the stairs for more than five
minutes. The subject was talking, conversing, swearing and yelling, using sarcasm when the two
officers attempted to assist him. He was uncooperative when they offered his help.

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Constable B.B. confirmed that Mr. C.C, was wearing layers of clothing and noted no bruising.
He did not believe he was injured and felt he had no duty to inform the Hope Mission that Mr.
C.C. was on the stairs. He stated that had he observed a visible injury, he would have
summoned medical aid.

The witness described a Category 1 – use of force as when a police officer uses physical force
Kicking someone pushing or any kind of physical force that's not a severe strike. It would be a
lower threshold use of force resulting in no injury. A category 2 incident would be where a
weapon system was used such as a baton, firearm, TASER or pepper spray. It would include
deliberate kicks or punches or where there is severe obvious injury. The officer then referred to
the reasonable officer response and the presenting officer asked number of questions with respect
to the difference between a category 1 or a category 2. The officer explained that a primary
characteristic of category 1 incidents was the use of empty hand or holds including use of
pressure points. He would be unable to determine weather Constable A.A.’s use of force was a
category 1 or category 2.

The witness confirmed that he believed Mr. C.C. displayed several indications of aggression
included clenched fists, his demeanor and was getting ready to punch Constable A.A. He
believed that Mr. C.C. had taken a stance to fight by leaning forward, sticking out his chest,
posturing, clenching his fists and “basically challenging him to a fight.” He did not recall asking
or attempting to get either man’s name.

Constable B.B. was asked about the Reasonable Officer Response under heading D, specifically,
request EMS if there are injuries or “force was applied that has known risks for the subject.” He
stated he did not believe that section applied in this case based on his observations of Mr. C.C.
done with Constable A.A. over approximately 2 minutes. After leaving the scene, the two
officers had a brief discussion about the incident ending with Constable A.A. committing to
notifying a supervisor. In retrospect, the witness stated that having the benefit of reviewing the
Reasonable Officer Response, an immediate call to a supervisor may have been “nice to do.”

I questioned the officer about what, if any, additional medical training he had beyond First Aid.
His training was limited to “serious police trauma” such as treating massive bleeding from stab
wounds or gun shots.

Testimony of Constable H.H.

The witness was sworn and confirmed she has been a member of the Edmonton Police Service
since December, 2008 and had seven years of service at the time of the incident. She had

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worked patrol in southeast division, communications for a year and had been in downtown
division for four years and was a training officer for Constable G.G. She is still on patrol in
downtown division.

On September 23rd, she and Constable G.G. were dispatched to a call at the Hope Mission from
Emergency Medical Services. They attended and spoke with an employee who provided access
to video of the incident. She learned that the male pushed down the stairs was Mr. C.C. and after
being cleared by the medical team, was sleeping. A second male, E.E. was also sleeping.
Constable G.G. took a statement from the employee, I.I., and she contacted a supervisor. An
allegation of assault - use of force - was being made by the staff and the On-Street Monitor
needed to be advised. Sergeant J.J. attended and she briefed him on her actions and her
involvement was concluded.

Mr. DANYLUIK cross examined the witness who confirmed her primary reason for calling the
sergeant was because of an allegation of an assault by a police officer. From there the matter
would go up channel. She did not identify the officers by her observations at the scene.

Prior to hearing additional evidence there were arguments and submissions with respect to the
admissibility of a statement provided by Mr. C.C. to Professional Standards Branch. Arguments
were necessary as the document service unit had been unable to locate Mr. C.C. and serve him
thereby compelling his attendance at the hearing. After hearing arguments, I ruled that I would
accept the statement but would assess the weight I place on it during deliberations.

Exhibit 9 – Transcript of the PSB interview of Mr. C.C. on October 14th, 2015

Testimony of Constable A.A.

The witness was sworn and confirmed he is a member of the Edmonton Police Service and has
been for more than six years and is currently on a foot patrol in North East Division. He had
about three years of service at the time of the incident. He was assigned to patrol but was
working, in uniform, on the marked police transport van and were transporting a male to the
Hope Mission. He had been to the Hope Mission previously. He was with Constable B.B.
whose turn it was to drive. They drove into the back alley up to the area called the snake pit –
the after-hours admission area for intoxicated males. They stopped and began to escort Mr. D.D.
towards the entrance. Mr. D.D. was being released on a promise to appear by Constable B.B.
and were walking the cooperative Mr. D.D. to the stairs and entrance.

Constable A.A. stated he was “immediately confronted” by a large male later identified as Mr.
C.C. The male was 200 to 215 pounds, taller with a heavy build. He was “confrontational,
belligerent…verbally aggressive and swearing.” Mr. C.C. appeared to be intoxicated with
slurred speech and was swaying or staggering. He was expressing discontent at not getting a bed

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at the Mission and that the police were bringing someone who seemed to be getting preferred
treatment. He attempted to reason with Mr. C.C., explaining that a bed had already been
reserved, using a calm voice and trying to defuse the situation. The lighting was poor. Mr. C.C.
had slowly moved to prevent the witness and his escort from getting through. He was yelling
and puffing up his chest. Both Mr. C.C. and his friend were in the path to the entrance. Mr. C.C.
continued to indicate he had been waiting several hours and he was not going to let the officer
pass by. This was about a minute of time. The witness assessed that his efforts were not having
the desired effects, Mr. C.C. is blocking passage and more verbally aggressive. The witness is
now using more stern verbal direction to “move.”

The witness clarified that he was dealing with Mr. C.C. whereas Constable B.B. had been
dealing with a second, taller male, later identified as Mr. E.E.. Both men were side by side in
front of the witness, between the officer and the stairs and entrance to the Mission.

The witness states that Mr. C.C.’s posture tensed, his jaw tightened, he was clenching his fist and
“he’s starting to blade his stance” and was in a “more of intimidating posture” and was preparing
to assault the witness, his partner or their escort. The witness stated he believed that this change
in posture was a prelude to a strike, assault or grab by Mr. C.C. The witness stated he used the
push to create distance to aid in creating a safe zone and communicate to Mr. C.C. that he needed
to move. He estimated there was about two feet of distance separating them before the push. He
believes the two-hand push used “moderate” force. His attention was on Mr. C.C. and he was
aware that Constable B.B. was engaged with Mr. E.E. His view of the stairs was blocked by the
two. He was surprised when his push resulted in the fall down the stairs. The witness perceived
Mr. C.C.’s fall as “stumbling back due to his intoxication and then going down the stairs”
ultimately landing on his back.

Mr. E.E. asked why the witness had pushed Mr. C.C. and he told him “you do not square off
with a police officer, and he acknowledged that that happened” by stating “I know but you
could’ve done something else.”

The witness went down the steps and though he had noted that Mr. C.C.’s eyes had been open,
they closed as he got closer. When they reopened, Mr. C.C. asked “who knocked me out?” The
witness noted no blood, no swelling, no screaming about injury to his head or back. Mr. C.C.
responded with anger and was repeatedly commenting “fuck you” when he was being offered
assistance to stand up. After Constable B.B. spoke to Mr. C.C. the two left the scene.

He explained that in coming to this decision, he believed it was Mr. C.C.’s intoxication that
contributed to the fall and that it was not his intent to push him down. He felt there were no
injuries and Mr. C.C. was refusing both his assistance and his partner’s and that Mr. C.C. was
with a friend, Mr. E.E., he used his discretion and left.

The witness advised he made notes as they departed but at that time did not know who Mr. C.C.
was. He had a discussion with Constable B.B. and said that he would speak to a supervisor. He

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believed the push was a Category 1 use of force incident. Despite the fall onto the stairs, EMS
was not called as Mr. C.C. did not appear injured and was complaining of no injuries. Despite
this being a category 1 incident, with no reporting required, he still made notes and after another
call, contacted his supervisor near the end of his shift.

The Presiding Officer began his cross-examination of the witness. The witness confirmed he had
made his notes earlier but did not complete them with the inclusion of the file number until some
time after 0342 hrs that morning. The witness believed he had made most of the notes before
adding the file number.

The witness confirmed he is about 5 foot six inches tall and approximately 170 pounds, that
Constable B.B. is a similar size and that both Mr. C.C. and Mr. E.E. were similarly sized and
larger than either officer.

The witness confirmed he was aware of the stairs and that Mr. C.C. and Mr. E.E. were between
him and the stairs and that they were both closer to the stairs than he was but could not say how
close they were. He confirmed that his attention was focused on the two males and he did not
“take too many looks around” as he was concerned about a confrontation with Mr. C.C.

The witness described “blading” as moving one foot behind the other to support momentum for a
push or a punch and create a stable base.

The witness was led through a video replay and described his thoughts at specific times. He
thought he had used a one-hand push but noted it was a two-hand and that when Mr. C.C. fell, he
cleared several steps before landing on his back. The witness agreed that the force seemed
greater in the video than what he recalled. He added that intoxication may well have contributed
to the fall and that his perception was of some “stumbling” backwards. He agreed his perception
was incorrect. The officer’s notes indicated that Mr. E.E.’s acknowledgement was only a “yeah”
and did not include “I know.”

The witness agreed that from the video time indicator, a minute and 20 seconds elapsed from the
fall to when the constables left having determined Mr. C.C. was not injured and did not require
assistance. No offer to call EMS was extended and the witness echoed Constable B.B.’s
evidence about medical training. His response to whether his actions met the expectations
Edmontonians would have was to state he did not believe Mr. C.C. required medical assistance.
The witness indicated he was not considering arresting or pursuing charges against Mr. C.C. He
assumed Mr. C.C. would be staying at the Mission despite being told he had not been admitted
after waiting for three hours. The witness confirmed that he did not obtain the names of any of
the witnesses.

The officer was led through a review of the use of force policy. The witness agreed the push was
two-handed and dynamic, but he considered it a category 1 at the time. The constable agreed he
was accountable for both the push and the consequences of that push, whether intentional or not.

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He added that he believed his assessment of Mr. C.C. was sufficient to meet his monitoring
obligations.

Mr. DANYLUIK re-examined the witness who confirmed that to his recollection, not based on
the video, that he did not use much force on Mr. C.C.

Under questioning by me, the officer stated he called his supervisor at about 0250 hours at which
time he was not aware of the involvement of other police officers and the reporting of the
incident. He was unable to recall whether the notes were completed in part after 0250 hours or
with additional notes made later or a combination of both.

Summation

The Presenting Officer

Mr. CRANNA presented three references for my consideration. These were copies of citations
he would refer to in his summation. Crampton v. Walton and the interpretation of the Court of
Appeal gave of the requirements of Section 25 of the Criminal Code which provides authority
for the use of force under specific conditions. He continued with R v Nasogaluak, 2010 SCC 6,
[2010] 1 S.C.R. 206, which addresses officer obligation and protections in the context of use of
force incidents. The last decision is from the Ontario Civilian Commission of Police Services
known as Hassan.
The legal test for use of force is covered by the Use of Force Policy under Exhibit 5. The test
includes whether the officer was legally placed. That is not at issue here.
The second factor is whether the officer subjectively believed the amount of force used was
reasonable. While Constable A.A. testified he believed at the time of the incident, that he was
using proportionate and reasonable force. The Presenting Officer suggested that this may be a
misplaced belief on the part of Constable A.A. as supported by his belief he used a one-hand
push and that the stumble backwards was due to intoxication on the part of Mr. C.C. The video
shows a two-hand push, powerful enough that a larger man was propelled backwards, actually
airborne over some steps, before landing on his back.
The Presenting Officer’s summation continued with comments on both Crampton v. Walton and
R v Nasogaluak, both cases that speak to the limitations engaged when considering the
reasonable expectations on police officers. While accepting the nature of policing decision
making, the frequently potentially dangerous situations and the inappropriateness of demanding
perfection in those circumstances, the Supreme Court set out what it considered to be the
constraining elements of proportionality, necessity and reasonableness. As acknowledged by
both police witnesses in this matter, an assessment was made of the situation, context and
environment. While recognizing that this assessment may be done quickly, it is what they are
trained to do. In this matter, Constable A.A. stated he was aware of the layout of the area, the
stairs and entrance to the Hope Mission, the location of the police van, the suspected intoxication
of Mr. C.C. and possessed all the information necessary to recognize that using force on Mr.

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C.C. could lead to a fall down the stairs. The objective perspective as presented by the video
shows an aggressive, two-hand push that resulted in Mr. C.C. landing on the stairs. This was an
excessive use of force.
The Hassan decision, according to Mr. CRANNA, sets the stage for my deliberations respecting
the discreditable conduct allegations. The Presenting Officer submits that I place myself in the
position of a reasonable person in the community to consider the immediate facts, applicable
rules and regulations and whether the application of good faith when discretion is involved.
In this case, Constable A.A. took no steps to identify witnesses nor did he advise a supervisor in
the first instance. His notes demonstrate “a keen interest in defending his own actions to the
exclusion of taking basic investigative steps like identifying witnesses.” This is in sharp contrast
to the steps taken by Constable H.H. and G.G.
While both Constable B.B. and Constable A.A. defended their determination that the use of force
was a category 1, it is The Presenting Officer’s submission, that the circumstances demonstrate
this was a category 2 event requiring a more robust response from Constable A.A.
The third count of discreditable conduct is with respect to Constable A.A.’s failure to render
appropriate assistance to Mr. C.C. While Constable A.A. may have only pushed Mr. C.C., a fall
onto the steps has known risks which would engage the need for a response greater than was
offered by the officer. The evidence is that there was no report to a supervisor for nearly three
hours after the incident and no advice to anyone else. The bottom line is that after an eighty
second assessment, both officers left Mr. C.C. where he lay on the stairs. Mr. CRANNA
submitted that Constable A.A. had to do more than what he did and that the community should
be able to reasonably expect that.
As to the element of “good faith”, there is no evidence that Constable A.A. subjectively acted in
bad faith. The Presenting Officer submits that the officer’s conduct was deficient.
Counsel for the Cited Officer
Mr. DANYLUIK began his remarks by pointing out that there is no evidence that Mr. C.C. was
injured as alleged in Count 3. All evidence is that he was not and had been medically cleared by
EMS when they did ultimately attend. This counters the suggestion that the officer’s actions
were deficient by not notifying the Hope Mission staff of an “injured” man on the stairs as it is
not supported by the evidence.
Mr. DANYLUIK then questioned the purpose of advising the staff without evidence of injury.
He referred to the evidence of Constable B.B. who indicated it was not a requirement of his job.
Mr. C.C. had been there outside for three hours and, presumptively, the staff knew that. Further,
can the officer “transfer” responsibility for Mr. C.C. to the staff? What is their requirement to
act? There is no evidence of the Hope Mission’s obligations to act.
As to not confirming that Mr. E.E. would take care of Mr. C.C., the officer made a natural
assumption which was bourne out in the video as Mr. E.E. did check with Mr. C.C.
As to not contacting EMS, Mr. DANYLUIK again asks the question…why? With no evidence
of injuries as assessed by the two officers, the need to call turns to “known risks” but in this case

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there were no indicia of injury. You may be aware of risks but with no complaint of pain or
apparent injury to a conscious subject why burden EMS. Mr. C.C. was not abandoned. He was
with a friend and it was not minus 40 degrees outside. The officer made an assessment, was told
to leave, heard the subject refuse assistance, noted he was with a friend and that he was outside
of the Mission. Mr. DANYLUIK submits that Constable A.A. had reached the point where he
determined his presence was no longer required.
The second pair of officers attended when called by the Mission staff and did not assess Mr. C.C.
but did their other duties.
The second allegation states that Constable A.A. did not take investigative steps until after
learning that other officers had gone to the Mission. Mr. DANYLUIK submits there is no
evidence before me as to when the constable learned other police officers had dealt with the
aftermath of his dealings with Mr. C.C.
According to Mr. DANYLUIK, the appropriate considerations for Count 1 were addressed by
the Presenting Officer but he wished to address the issue of awareness of the surroundings. How
much opportunity did the constable have to become aware of the area? Mr. DANYLUIK
submits that Constable A.A. was confronted by two large men in a poorly lit area with his
attention on the threat of assault by Mr. C.C. and expecting an assault used minimal force by
pushing Mr. C.C., who was closer to the stairs than expected. It was a reaction. The video may
provide different perceptions than the officers had. Both officer’s perceptions in this matter
match those of the witness who thought the push was “casual.” “Blading” and “squaring off” are
two ways of describing fighting stances. Constable A.A. faced Mr. C.C. who sent a message
from his body positioning that he was prepared to get physical if not carry out an assault. The
push was to gain distance. Whether the push was a category 1 or category 2 is a gray area.
Interestingly, a push is not even identified in the policy.
The final comment is that there was no complaint to the police service nor was there any
evidence as to how the community perceived this incident or felt about it. Constable H.H. called
a supervisor because she was told that Mr. C.C. had been pushed down the stairs. Her mindset
was different from that of Constable A.A.

Rebuttal by the Presenting Officer

Mr. CRANNA pointed to the 8 to 10 minutes of video showing Mr. C.C. laying on the stairs as
evidence of injury. The benefit to Constables H.H. and G.G. had Constable A.A. advised the
Hope Mission staff of Mr. C.C. is apparent. What actions the staff would take upon such a
notice are also apparent because they did take action…they called EMS and they admitted him
for the night. An EMS call would not be overly onerous or an unnecessary drain on resources
when involving an intoxicated male having gone down a flight of stairs.
The video addresses the difference between “casual” and the force seen. Minimal force may
have been a one-hand push but this was two-handed and more than “casual.”
The source of the complaint is immaterial. The community’s perception of the police service, its
professionalism and reputation is engaged. The witness, Ms. F.F., testified she found the matter

[14]
“shocking.” Regardless, the test in Hassan does not require direct evidence of the community
reaction to an event.

Response by Counsel for the Cited Officer

Neither officer’s notes indicate that Mr. C.C. was injured. Laying in a stairwell for 8 minutes is
also consistent with someone grossly intoxicated. Not only was Ms. F.F. shocked, so too was
Constable A.A.

Discussion

Witness F.F. gave straight forward and credible evidence. She witnessed much of the events
leading up to the incident from a dark area where she was smoking. She saw the police van
arrive and the officers deal with someone from the van. She heard Mr. C.C. or Mr. E.E. being
“ornery”, a little aggressive and giving the police officers a hard time. One of the officers
walked up to Mr. C.C. and gave him a push and the man went down the stairs. She reported the
incident to staff at the Hope Mission where she was residing at the time. She saw Mr. C.C. some
time later at which point she noted he was intoxicated.
I struggled with the evidence of Constable B.B. and how much credibility to place in his version
of events. Clearly, he was an inexperienced and junior constable at the time of the events. His
evidence and perceptions appeared to me to have been more akin to those a civilian would make
as opposed to a trained, operationally equipped, armed police officer working with a
partner…also a trained police officer. His observations of the type of people one encounters in
the shelter district and the dangers they may present was testimony that I believe was designed to
impart an exaggerated sense of danger to justify the actions which followed. Mr. E.E. and Mr.
C.C. were what they were…two intoxicated, indigenous men looking for a warm bed and
frustrated that they had been unable to secure one and faced with a third man being granted the
very thing they were after and assisted by the police. Were they indignant at the way Mr. D.D.
seemed to be getting what they had been denied? Likely. Did they pose a significant or
extraordinary threat to either officer? I do not believe so and base my belief on the observation
that neither officer discussed the need for or called for assistance from additional officers.
Much of the officer’s “evidence” was based less on what he observed, heard and did than it was
on conjecture of what Constable A.A. was thinking or what I would call character evidence as to
the type of police officer Constable A.A. is. I found much of the officer’s testimony to have
been a projection of his opinions versus unbiased observations.
His evidence that Mr. C.C. displayed signs of aggression including “leaning in” and clenching
fists, aggressive verbiage and other indications or pre-assaultive cues do not mesh with the visual
of how easily Mr. C.C. fell when, by the officer’s evidence, “lightly pushed by Constable A.A..”
Clearly the video shows no movement towards Constable A.A. by Mr. C.C. despite Constable
B.B.’s belief that he had. As well, these observations were made in what both officers called an

[15]
area with limited visibility and yet I am to believe Constable B.B. made his observations from
behind both Mr. D.D. and Constable A.A.

I was particularly taken aback with Constable B.B.’s assertion that he had no “duty to advise the
Hope Mission staff” that Mr. C.C. was “down” on the rear stairs. His logic, frankly, astounded
me in its complete and utter disregard for the principles of respect, compassion and basic human
interaction. There was a duty that night…a duty of care to Mr. C.C. the moment Constable
A.A. engaged in the use of force. As a police witness to the event, Constable B.B., shared that
duty. This duty was not one that could be reasonable satisfied by a cursory examination of
approximately eighty seconds, by someone with only standard first aid training and then driving
away. From my review of the Reasonable Officer Response, there was a clear and unequivocal
duty to render significantly more aid than was done here and a call to EMS should have been
made as was done by the Hope Mission staff subsequently. I also believe there was a moral duty
to do more than was done. Constable B.B. would be well served to review the Reasonable
Officer Response and police service policy to ensure he clearly understands it and the duties and
obligations the policy places on officers. I do not share his belief that this incident could have
been categorized either way.

His justification for not calling a supervisor was an extremely brief interaction with an
intoxicated subject expressing anger, frustration and, likely, shock and disbelief at having been
forcefully pushed backwards down a stairwell. From this assessment, Constable B.B. stated he
concluded Mr. C.C. was “acting” to maximize his plight and was uninjured. I find that
conclusion to be, at the very least, unreasonable, and at most, misleading and unjustifiable in the
circumstances.

Constable H.H. provided clear evidence as to her involvement and that of her trainee, Constable
G.G. She attended to a call from the Hope Mission and when she learned of the circumstances
and allegation of assault against another police officer, called a supervisor.
Constable G.G. spoke with a staff member and obtained information from Mr. I.I. that Mr. C.C.
was intoxicated and had been around the mission for several hours. They had no room. Staff
had called EMS who had “cleared” Mr. C.C. who was then provided a place to sleep.
The evidence of Mr. C.C. was entered by way of his statement to Professional Standards Branch
Detective Paul GREGORY. Apart from confirming that at least two others, Mr. E.E. and Ms.
F.F., told Mr. C.C. that he had been pushed, it provided little evidence.
Constable A.A.’s evidence was similarly problematic when taken with the testimony of
Constable B.B. The officer admits his engagement with Mr. C.C. once in front of the stairs was
“about a minute.” This had been preceded by some brief verbal exchange and then Mr. C.C.
moved “slowly” to the area in front of the stairs. The constable testified he had to get more
“stern” in his demand for Mr. C.C. to move and in that minute came to the assessment that Mr.
C.C. was about to assault him. He thought he used a one-hand push which he believed to be
minimal force. His examination of Mr. C.C. determined no injuries, no complaint of injuries and
no request for assistance.

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The officer stated he made notes about the incident after leaving the scene, had a brief discussion
with Constable B.B. about it and told Constable B.B. that he, Constable A.A., would notify a
supervisor giving them in effect a courtesy call. He confirmed that he did not consider the matter
anything other than a Category 1 use of force incident and the notification was not required but
was done as a “head’s up.” His belief was based on his not finding any injuries and the minimal
use of force.
The constable’s description of the mannerisms demonstrated by Mr. C.C. are specific and detail
his verbal aggressiveness, pushing out his chest, tightening his jaw, clenching his fists, taking a
fighting stance by “blading” culminating in his forming the belief he was about to be assaulted.
This detail contrasts with his response when asked about the proximity of the stairwell that he
states was hidden from his view by the two men, that it was a poorly lit area, he was focused on
his interaction with Mr. C.C. and the proximity of Mr. E.E.
His evidence was that he attributed Mr. C.C.’s backward fall as much to intoxication as to the
force used. Constable A.A. stated that the fall seemed to go slowly and that he did not believe
Mr. C.C. had struck his head. He stated he talked to Mr. E.E. and then assisted Mr. C.C.. Once
satisfied that Mr. C.C. was not injured, the officers departed.
The video of the incident is limited to the stairwell area with the incident taking place on the
extreme left of the screen. The alley is in darkness and on the extreme edge of the video.
I am aware that video such as this is recorded at various frames per second speeds which affects
the playback image. The effect is to make the playback appear to occur faster than it is. This
would explain the very dramatic and dynamic images of the consequence of the push. The
image appears faster because the camera is not running continuously but rather capturing 8 to12,
perhaps 20 frames per second while high definition video captures 30 to 40 or more frames per
second. Obviously, lower frame capture, or refresh rate, means some of the movement that
occurs is not captured. This is what causes movement in some surveillance video to appear
disjointed and lacking fluidity. At the low refresh rate, someone may appear to cross a room in 3
steps, cell block video may not capture a thrown punch or the act of falling is missed. Similarly,
when regular action is sped up, so is slow action made to go faster. What may be perceived on
video as slow movement is, in reality, occurring even more slowly than seen. I have no evidence
before me as to the recording speed of this video but recognize and accept that it is what it is,
that is, a surveillance video, that was not captured in high definition. It contains the noted
distortions.
I reviewed the video in this incident with this caveat in mind. It is my belief that this distortion
partially accounts for the almost explosive reaction we see as Mr. C.C. is pushed backwards.
That is not to suggest the energy imparted was diminished, just that our image of the fall is seen
occurring faster than it did. The video also shows me that, Mr. C.C. was not braced for the push.
He was not prepared for it and was not in either a defensive or fighting stance. He was not
“tensed up.” His feet are apart and even with one another…they are not “bladed.” His
movements in the moments up to the push, are slow in the video…therefore even slower in real
time. It is not difficult to recognize the unsteady, casual movements of an intoxicated man
struggling with remaining on his feet. I do not see a man preparing to assault a police officer or
preparing to engage in a fight. I believe Constable A.A. was mistaken in his observations.

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I note that Mr. E.E. is leaning against the wall on the right side and remains so while Mr. C.C.
approaches. It appears that the two men are talking and facing each other. It takes Mr. C.C.
approximately 25 seconds to turn around and face the alleyway and, presumedly, Constable A.A.
Two seconds after completing his slow-motion turn, he is pushed, landing on his right side
facing the wall to the officer’s left. Constable A.A. glances at Mr. C.C. but directs his attention
to Mr. E.E. and Mr. D.D. then attempts to move another male on the stairs next to Mr. C.C.. At
07:08, Constable A.A. shakes Mr. C.C. then directs his attention back to Mr. D.D.. At 07:20 he
shook Mr. C.C. again but within 5 seconds, he was assisting Mr. D.D. to get past Mr. C.C..
Between 07:30 and 07:56, Constable A.A. appears to be engaged with Mr. C.C., trying twice to
pull him up. Both constables walked away at 08:13. This equated to a total elapsed time
engaged with Mr. C.C. of less than a minute. Less than a minute to assess for injuries and
provide assistance to a potential victim.
As to count 1 and the application of unnecessary force, I look to Section 25 of the Criminal
Code. The Presenting Officer submits there is need to apply a three-pronged test for application
of the use of force protection afforded by the section. For ease of reference, Section 25 is
reproduced herein…

25. (1) Everyone who is required or authorized by law to do anything in the administration
or enforcement of the law

(a) as a private person,

(b) as a peace officer or public officer,

(c) in aid of a peace officer or public officer, or

(d) by virtue of his office,

is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do

and in using as much force as is necessary for that purpose.

R. v. Nasogaluak, SCC 2010 provides additional factors for my consideration when assessing the
use of force. Starting with paragraph 32…
“While, at times, the police may have to resort to force in order to complete an arrest or
prevent an offender from escaping police custody, the allowable degree of force to be
used remains constrained by the principles of proportionality, necessity and
reasonableness. Courts must guard against the illegitimate use of power by the police
against members of our society, given its grave consequences.”
Found in paragraph 34 is the relevant test… “the officer’s belief must be objectively reasonable”
and “that the use of force under s.25(3) is to be judged on a subjective-objective basis.”
At paragraph 35, the Court continues by stating that…
“Police actions should not be judged against a standard of perfection. It must be
remembered that the police engage in dangerous and demanding work and often have to

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 react quickly to emergencies. Their actions should be judged in light of these exigent
circumstances.”
The next reviewed and considered case was Crampton v. Walton, 2005 ABCA 81. I have
previously reviewed this case when making a determination under Section 25. Paragraph 20
requires the use of force by an officer to be examined from the perspective of (numbering of
points is mine)…
1) “the shoes of the officer and assess whether reasonable grounds existed for the
actions taken.
Paragraph 21 calls for the court to…
2) “determine whether there was an objectively reasonable basis, given the
circumstances faced by the police officer, for the actions undertaken by the officer.”
And continues…
3) “Section 25 (1) is not an absolute waiver of liability permitting officers to act in any
manner they see fit. Chartier at paragraph 64. The police are entitled to be wrong,
but they must act reasonably.”

4) “Police officers act in dangerous and unpredictable circumstances.

5) “Officers have to react to the circumstances that present themselves.

6) “Police officers will be exempt from liability if they use no more force than is
necessary having regard to their reasonably-held assessment to the circumstances
and the dangers in which they find themselves,

7) Police officers are not expected to measure the precise amount of force that a
situation requires.

8) “Nor will they be denied the protection of Section 25 (1) if they fail to use the least
amount of force that would achieve the desired result.

9) “Allowance must be made for an officer in the exigency of the moment misjudging the
degree of necessary force.

10) “Accordingly, the immediate decisions a police officer makes in the course of duty
are not assessed through the lens of hindsight.”

As I review the 10 items I have identified from the case, I note that almost all speak to the
“reasonableness” of the officer’s actions. Did Constable A.A. hold a reasonable belief that his
actions were necessary? Was he reasonable in his assessment of the events that morning? Were
his actions objectively reasonable in the totality of the situation?

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Having adjudicated a number of unnecessary use of force incidents, I find myself, once again,
walking a fine line as I strive to determine answers to these questions. I am very cognizant of
item 10 and the caution about “the lens of hindsight.” I concur with this statement and I share a
related belief that we not be so restrictive in our judgement of a police officer’s actions that they
are prevented from carrying out the duties our society charges them to do.
That having been said, society recognizes that sober second thought, calm reflection or the need
to account for one’s actions are not the same as hindsight. Police officers are well aware that
their actions are subject to a myriad of reviews most of which are to ensure they are discharging
their duties in accordance with public expectation, police service policy and the laws that govern
us all. While Constable A.A. is entitled to act to defend himself and to use force to that end, he
is still accountable for his actions and the consequences of those actions.
At the risk of engaging in the exactitude of hindsight, I note that Constables A.A. and B.B. were
confronted by two intoxicated males when they delivered Mr. D.D. to the rear entrance of the
Hope Mission. One of the men was loud and true to intoxicated persons everywhere, both were
not on their best social behavior. The fact they were not shy about approaching the officers or
did not act like the officers expected a member of the general public to act is not indicative of
danger, in and of itself. This, however, seemed to set the stage for what followed with both
constables reading into what I would consider to be, a rather benign exchange, more risk than I
believe was presented.
Let me be clear, these are two trained police officers, in uniform, with communication equipment
and an assortment of weapon options. Constable A.A. was aware of the area having previously
attended there. He was aware of the stairwell and of Mr. C.C.’s move to place himself between
the officers and the entrance to the Hope Mission. Constable A.A. was the sole determiner of the
timing of the events that morning. He led the way. He engaged verbally with Mr. C.C. He
continued despite some verbal resistance. What was his hurry? What was the cost in time, effort
or risk of stopping and taking more than the “minute” he states he spent trying to get Mr. C.C. to
move out of their way. It was minimal. In fact, Constable A.A. acknowledged a significant flaw
in his risk assessment that this determination to move forward contributed to which was that he
was not fully aware of his surroundings.
Reference was made to the “push” as being a low-level, minimal use of force. To my mind and,
in my opinion, to Constable A.A.’s mind, the known presence and proximity of the stairwell to
Mr. C.C. negated, in fact, precluded the use of a push. The foreseeable consequence of injury
from falling down the stairs elevated what might normally be a low-level use of force to an
unacceptable level based on the potential for risk. Where did Constable A.A. expect Mr. C.C.
would fall when pushed? The only path, clearly defined by a fence on the left and a fence and
post on the right, visible despite the darkness, was the stairwell. The only place to fall was onto
the stairs…not an acceptable option in the circumstances.
Constable A.A. clearly outlined his risk assessment and the reasons for his subjective belief he
was in danger of being assaulted. I accept that his belief was that he was at risk. That said, I
believe his risk assessment and perceptions were significantly flawed. This is not hindsight, it is
a careful and objective review of his actions. I accept that the area was poorly lit. The available
light was concentrated on the stairwell. Access to either side of the stairwell was blocked by full
fencing and a support post. These would have been clearly visible. Constable A.A. was heading

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to the stairwell. It was his objective and he stated that Mr. C.C. was blocking his access. Again,
he was aware the stairs were there. Constable A.A. stated that Mr. C.C. and Mr. E.E., both larger
men, were blocking his view of the stairs yet the video clearly shows that Mr. E.E. is in fact
turned sideways and leaning against the right side. Mr. C.C. is on the top step/landing and there
is ample space around his feet and legs to see the stairs and their proximity. Constable A.A.
stated he saw Mr. C.C. move his feet into a fighting stance. If he saw that, he should have seen
the stairs. The video, however, provides an alternate version of Mr. C.C.’s actions at the top of
the stairs. He is facing Mr. E.E. and takes almost 30 seconds to turn and face the approaching
police officers. This is not a quick or threatening movement. He no sooner completes his turn
and with his feet even with each other, shoulder apart, is pushed over the steps. His fall
highlights another failure in Constable A.A.’s risk assessment. Mr. C.C. was not tense, nor was
he preparing to fight. He was struggling to stay on his feet due to his level of intoxication as
evidenced by his complete failure to protect himself and the ease by which he was pushed over.
The final factor – whether the force used was objectively reasonable – has been reviewed. I do
not believe it was. Accordingly, as Constable A.A.’s actions were not reasonable, he cannot rely
upon the protection of Section 25. In my view, his actions fail the test of proportionality,
necessity and reasonableness.
Count 2 is discreditable conduct by not taking investigative steps until after learning that
additional police officers had been called to the Hope Mission to investigate Mr. C.C.’s
circumstances. After careful review of the evidence, including the testimony of both officers, I
have no evidence to support this allegation. I find the notes of both officers suspiciously tailored
to defend against an allegation of improper use of force and failure to advise a supervisor that
would suggest forewarning. There is no solid or specific evidence to support that.
Count 3 is discreditable conduct by failing to render appropriate assistance to Mr. C.C., or in the
alternative, advise staff at the Hope Mission or contact Emergency Medical Services. This count
is perhaps the most straight forward for decision. The officers gave direct testimony as to the
steps they took, conclusions they reached and their rationale for not notifying staff or EMS. The
video clearly shows the steps they took and, most telling, puts a time stamp on those steps. From
Constable A.A. entering the stairwell at 00:06:51 until both officers turn away from Mr. C.C. at
00:08:13 and clear the stairwell at 00:08:20, a total of 89 seconds, less than a minute and one
half. As I have previously stated, I was astounded by the actions of both constables. I do not
accept that a reasonable, even cursory first-aid assessment could be carried out in that amount of
time. I further note that 89 seconds was the maximum time the assessment could have taken as
that was the length of time Constable A.A. was on the stairs. Realistically, the video also shows
him spending time apparently talking and looking at Mr. E.E. as well as trying to move an
unknown male also laying on the steps next to where Mr. C.C. landed. He also spent moments
directing Mr. D.D. past and over the two prone men. These activities took 20 or more seconds
off the time spent focussed on Mr. C.C.
I am not a medical technician nor a paramedic. I have held Standard First-Aid certification,
renewed every 3 years, for most of the past 44 years and am current in my certification today.
What I saw on the video and described by either officer did not resemble an injury assessment
like any I was taught, and I have no doubt, was nothing like they were taught, either. Having
direct knowledge of the circumstances of the fall would not shorten the examination…it should
have triggered a more detailed examination, particularly of the head and neck. I can accept that

[21]
Mr. C.C. was uncooperative and angry. I can accept and understand that he was directing his
anger at the police officers. After all, one of them caused his fall. All the more reason for
introducing a neutral party, either the Hope Mission staff or, preferably, Emergency Medical
Services, to conduct the assessment. Constable A.A. could not rely on information from
Constable B.B. as his interaction was even shorter though he was purportedly able to also
determine that Mr. C.C. was “acting.” I do not know if he was acting or not or for that matter
whether he was injured or not. For my purposes, the result is immaterial. I do know that neither
Constable B.B., nor more importantly, Constable A.A. could reasonably form that conclusion
based on their minimal assessment of Mr. C.C.. To point to the results of the Emergency
Medical Services examination eventually conducted and suggest the officers evaluation was
correct was luck and not based on any suggestion of skill or experience.
Both officers acknowledged they took no steps to advise staff at the Hope Mission or Emergency
Medical Services. They stated it was unnecessary as they had assessed that Mr. C.C. had no
injury, was with a friend and the Mission staff knew he was there. It has been suggested that
there was no policy obligation or duty to do so. I strongly disagree. As previously found, the
moment Constable A.A. engaged in a physical interaction with Mr. C.C. he engaged a duty of
care over him. Discharging this duty is not so easy as to be satisfied by a woefully inadequate
medical assessment but requires taking steps to ensure competent and appropriate medical
treatment. Their rationale for not doing so is undefendable.
I find that the public interest in this matter, if in any doubt, may be satisfied by my objective
review as noted in Hassan. I have previously expressed my belief that Edmontonians, provided
with the background of this matter and after viewing the video, would find the officers actions
fell significantly short of the expectations the community places on its police officers. The
reputation of the police service with the staff of the Hope Mission may have been impacted.
Imagine calling the police, upon whom the Mission relies during crisis moment, to report
misconduct by one of their own. The relationship with the Emergency Medical Services
attendants who treated Mr. C.C. would be impacted as Mr. C.C. explained how he had been
treated. There is ample cause for concern. In addition, I note that Mr. C.C. attempted to initiate
a complaint as described in his statement. I see no concern with the Chief pursuing this matter in
recognition of the impact on the service.

Decision
Complaints of unnecessary or excessive force are unfortunately all too common and yet, I
believe, inescapable, given the nature of policing, the expectation of society that the police will
act in challenging circumstances and be called upon to deal with often difficult people. The
complaint process and subsequent investigations and review processes such as this hearing are
necessary safeguards for our society. They provide the oversight the community expects. As
repeatedly stressed in the case law before me, the police do not have unrestricted leave to act as
they please without due regard to the very laws, rights and freedoms we expect and enjoy as
Canadians.
Constable A.A. faced an intoxicated Mr. C.C. who expressed frustration with not being admitted
to the Hope Mission while Mr. D.D., escorted by the police, was getting in. Constable A.A.

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performed a threat assessment of the risk posed by Mr. C.C. and concluded Mr. C.C. was about
to assault the officer. Was that conclusion objectively reasonable? The evidence of physical
stature of the larger, intoxicated Mr. C.C. is offset by the deficiencies I found in Constable
A.A.’s analysis. I do not find that Constable A.A.’s conclusion was reasonable.
The next aspect is to examine the use of force from the perspective of objectively reasonable
proportionality. Was more force used than was necessary given the other options that may be
potentially less harmful? Constable A.A. stated he believed he used a one-hand, moderate push.
Video shows a two-hand, stronger push. I am not particularly concerned with the amount of
force used to push. I acknowledge that the push is within the range of options available to an
officer, however, I believe that other factors known to the officer made the push an inappropriate
response. The risk of foreseeable injury was too great and other options – stopping his advance,
tactical repositioning, further discussion - were available to the officer. Upon reflection, the
officer was in control of all aspects of the interaction with Mr. C.C., with the exception of any
potential reaction by the intoxicated man, and in his determination to deliver Mr. D.D. to the
entrance, acted in an unreasonable manner.
In coming to my decision on proportionality, I found guidance in the various case law submitted.
I am not to judge to “a standard of perfection” (Nasogaluak) nor with or through “the lens of
hindsight” (Crampton v. Walton). Crampton sets out additional cautionary points that an officer
should not be “expected to measure the precise amount of force that a situation requires.”
Additionally, the officer shall not “be denied the protection of Section 25 (1) if they fail to use
the least amount of force that would achieve the desired result” and, finally, that allowance
should be made “for an officer in the exigency of the moment misjudging the degree of necessary
force.” Chartier states “it is both unreasonable and unrealistic to impose an obligation on the
police to employ only the least amount of force which might successfully achieve their
objectives.” These cases are of limited application as I was not concerned with the amount of
force contained in the push, but, rather, whether the push should have been used at all.
I recognize each of these decisions vary in age but all contain one significant common
theme…the need to use caution and sound judgement when reviewing the degree of force used
by an officer. With that in mind, I find the circumstances did not warrant the force used and
given the potential for, likelihood of and foreseeable consequence of the force it was
disproportionate. Section 25 C.C. does not apply and Count 1 is proven.
I concur with Mr. DANYLUIK and find there to be a lack of supporting evidence with respect to
Count 2 as it was written and the count is not proven.
The allegation within Count 3 is supported by the lack of appropriate assistance provided by
Constable A.A. to Mr. C.C. as well as the failure to advise either the Hope Mission staff of Mr.
C.C.’s circumstance or to have called Emergency Medical Services. The count is proven.

Dated this 16th day of January, 2019 at Edmonton, Alberta.

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Fred R. KAMINS, Chief Superintendent, R.C.M.P. (Retired) The Presiding Officer

Mr. Derek CRANNA The Presenting Officer

Mr. Mike DANYLUIK For the Member

[24]