No charges to be filed against LPS officer over 2018 incident

By Al Beeber - Lethbridge Herald on August 26, 2023.

LETHBRIDGE HERALDabeeber@lethbridgeherald.com

No charges will be laid against a Lethbridge Police Services officer following an investigation into a 2018 incident involving use of force at an out-of-control Halloween party on the southside.
The Alberta Serious Response Team released its report on Thursday which stated on May 8 the Alberta Crown Prosecution Service recommended no charges be filed because prosecution wasn’t in the public interest due to the lengthy delay.
ASIRT says it has undertaken steps to ensure that, as best as possible when grounds exist for a file to be sent to ACPS, it be done as soon as possible.
The investigation was filed after police were called to a Halloween party that started Oct. 17 2018 and continued into the early hours of Oct. 18 which had gotten large and disorderly. Possibly as many as 500 people were at the party.
Multiple calls were made to police, the first at 11:57 p.m.. on Oct. 17. Security at the nearby Coast Hotel had complained of possible underage drinking and that partygoers were causing problems at the hotel.
At 1:31 a.m. on Oct. 18, a civilian witness called police and said someone had tried to jump him which included punching him in the head and pointing a gun at him. This person was hiding in an alley while waiting for police.
A 911 call shortly after from a female caller said the party was out of control and she needed help with blood on walls, people fighting and trashing the building while others had baseball bats. The caller said drugs and alcohol were involved and someone had a gun, some of these issues which were confirmed by surveillance video at the hall.
Witness statements and video show the subject officer was observed punching in the face an individual ASIRT described as “the affected person.” Witnesses said the officer also grabbed the “affected person,” who was described as an aggressor, by the throat before punching him.
ASIRT’s report says a witness video from who it calls Civilian Witness No. 4 shows the subject officer moving around a group of people toward the affected person who the report says appeared to be standing as part of the group.
“The SO (subject officer) takes a step or two forward, but it is not possible to see what the AP is doing. The SO then punches the AP once with his right hand. The SO continues to walk toward the AP, who is facing him, and the SO reaches a hand up toward his neck or shoulder area. At this point, CW4 tackles the SO, who goes forward into the ground. After a brief struggle, CW4 leaves and the SO returns to the AP. He pushes him down with both hands on his upper chest or neck area and sits on his chest. Several people surround the SO and the AP, yelling and coming very close to them. The SO starts to yell for everyone to leave or back up,” says ASIRT’s report.
ASIRT says CW4’s video “provides objective evidence against which to weigh the evidence of the witnesses, including the SO. The SO said that CW3 (civilian witness 3) ran away from him, and the AP stepped in front of him. This would be a potential obstruction by the AP, providing the SO with legal justification for detaining the AP. However, the video does not show this. It shows the SO going around a group of people to get to the AP. The SO then claims that he ‘threw a check’ at the AP. What he actually did was grab the AP by the throat, push him, and then punch him in the face. The SO was not truthful in his statement or notes on the police file,” says ASIRT.
CW3 and the affected person, said a statement from a person described as Civilian Witness 2, were among people confronting an individual who had used a fire extinguisher at the party.
The officer, says ASIRT, submitted notes and a statement as part of his police file which was reviewed by ASIRT investigators. The officer didn’t agree to be interviewed by investigators, which ASIRT says was his right as the subject of a criminal investigation, a right which “does reduce the reliability of the statement, but not to the point where it should be disregarded,” says the report.
The report also says the affected person minimized his involvement in events leading up to the incident. He was involved in fights and was likely the aggressor, says ASIRT, which adds the portion of his statement involving the LPS officer was “mostly accurate.”
“The only part that the AP misses until he sees the video is that the SO choked him. This tends to increase the believability of the AP’s statement since it shows he is not embellishing,” says ASIRT.
ASIRT’s report says the evidence of three witnesses as well as the video taken by one “shows an unprovoked assault by the SO on the AP. It was not proportionate, necessary, or reasonable on the evidence they provided. The SO’s version was contradicted by the video evidence. While it provides a defence, this contradiction makes it unlikely to be accepted.
“It is possible that important events occurred just before the video starts. However, the evidence of CW2, CW3, and CW4 covers this period, and is un-contradicted by the
current evidence. There were therefore reasonable grounds to believe that an offence may have been committed by the SO and, as required by the Police Act, this matter was referred to the Alberta Crown Prosecution Service (ACPS) on February 22, 2023 for an opinion on whether charges should be laid,” says the report by executive director Michael Ewenson.
The report says that under Section 25 of the Criminal Code officers are permitted to use as much force as necessary for the execution of their duties, adding that all use of force but be “proportionate, necessary and reasonable. Proportionality requires balancing a use of force with the action to which it responds. Necessity requires that are not reasonable alternatives to the use of force that also accomplish the same goals.
“These alternatives can include no action at all. Analysis of police actions must recognize the dynamic situations in which officers often find themselves, and such analysis should not expect police officers at the moment to weigh alternatives in the same way they can later be scrutinized in a stress-free environment.
“Reasonableness looks at the use of force and the situation as a whole from an objective viewpoint. Police actions are not to be judged on a standard of perfection, but on a standard of reasonableness,” adds the report.

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