R. v. Pompeo Date:, 2013 BCPC 30

Citation: R. v. Pompeo Date: 20130214 2013 BCPC 0030 File No: 33757 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DAVID A POMPEO REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE WOOD Counsel for the Crown: T. Patola, R. Havelaar Counsel for the Defendant: R. R. Hira, Q.C., V. Conrad Place of Hearing: Duncan , B.C. Dates of Hearing: September 4-7, 10, 11, 13, 14, 2012 November 8, 23, 2012 Date of Judgment: February 14, 2013

INTRODUCTION [ 1 ] David A. Pompeo, a Constable in the Royal Canadian Mounted Police (“R.C.M.P”.), is charged that: ...on or about the 18 th day of September, 2009, at or near Chemainus, in the Province of British Columbia, [he] did commit aggravated assault of William Arthur Gillespie, contrary to Section 268(2) of the Criminal Code . [ 2 ] The charge results from the fact that Mr. Gillespie was shot by Const. Pompeo during what was ostensibly a traffic check stop initiated by the officer on the suspicion that Mr.

Gillespie was driving while prohibited from doing so by reason of an order under s. 259 of the Criminal Code . [ 3 ] The issue is whether the circumstances of the encounter between Mr. Gillespie and Const. Pompeo that evening were such as to deprive the officer of the justification for firing his weapon as described in the relevant provisions of s. 25 of the Criminal Code : 25.

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

b) as a peace officer or public officer, . . . 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. . . .

(3) Subject to subsections (4) and (5), a person is not justified for the purpose of subsection (1) in using force that is intended or likely to cause death or grievous bodily harm unless the person believes on reasonable grounds that it is necessary for the self preservation of the person or the preservation of any one under the person’s protection from death or grievous bodily harm. [ 4 ] It is not disputed that Const. Pompeo intentionally shot Mr. Gillespie, a use of lethal force that was likely to and indeed did cause the latter grievous bodily harm.

As s. 25(3) provides, he was justified in using that lethal force if he believed on reasonable grounds that it was necessary to protect either himself or another person under his protection from death or grievous bodily harm. As in all criminal cases, the onus is on the Crown to prove beyond a reasonable doubt either that he had no such belief or, if he did, that it was not based on reasonable grounds. THE EVIDENCE [ 5 ] Const. Pompeo graduated from R.C.M.P. training in November of 2005. The Duncan/North Cowichan Detachment was his first posting as a police officer.

In May of 2008 he became a member of the local Emergency Response Team. By all accounts he has received extensive training both in the use of force during the execution of his regular duties and in the various use of force options at his disposal as part of the regular equipment carried by all police officers while on duty. During the month of September, 2009, he was assigned to a Street Crime Unit. As a member of that unit his duties included the street level enforcement of drug and property crimes and the management of identified prolific offenders. [ 6 ] His Street Crime Unit partner at the time was Const.

Birchett, an officer of roughly similar experience in terms of length of service. Prior to becoming a member of the R.C.M.P. he had spent 11 years as an Inspector for the Department of Fisheries.

While the evidence does not disclose he was also a member of the Emergency Response Team, nonetheless he would have received the same use of force training given to all recruits during his six months at Depot. [ 7 ] When on duty as members of the Street Crime Unit, the officers used a grey unmarked Chevrolet pickup truck which contained variations of all the usual equipment with the exception of a permanent computer station.

They worked in plain clothes although each wore a standard issue bullet proof vest either under or over their outer clothing and both carried all of the usual equipment, including weapons, much of which was worn outside their clothing and easily visible, thus identifying them as police officers to anyone with whom they came into contact. [ 8 ] On September 10 th , eight days prior to the events giving rise to the charge he is now facing, Const. Pompeo and Const. Birchett were in north Chemainus investigating the theft of an expensive boat motor.

As they drove down Garner Street, they observed a male person on the front step of a residence who turned and stared at them as they drove by. Const. Birchett recognized the individual as Mr. Gillespie and he so advised Const. Pompeo. He knew Mr. Gillespie from an earlier occasion when the latter had reported the theft of a computer. As a result of that investigation Const. Birchett had become aware that Mr. Gillespie was associated with what he described as a brown Saturn motor vehicle similar to one he saw parked in the driveway to the Garner Street residence on that occasion. [ 9 ] Early in 2009 Const.

Birchett had received information from an informant that Mr. Gillespie, who he understood was a heavy drug user, was trafficking in marijuana. As a result, on April 14, 2009, he had accessed the various on-line police information services and became aware of the fact that Mr. Gillespie had been convicted “around 2005” of a robbery “involving a firearm” and that he was prohibited from driving a motor vehicle as a result of a conviction for impaired driving. Mr. Gillespie’s criminal record, marked as

Exhibit 13, indicates that on November 29, 2006, he was convicted of robbery and a separate count of unauthorized possession of a firearm contrary to sections 344 (

b) and 91(3) of the Criminal Code respectively. A separate record, marked as Exhibit 16, establishes that on May 23, 2008, Mr. Gillespie was convicted of an offence under s. 253(1) (

b) of the Criminal Code as a result of which he was prohibited from driving a motor vehicle anywhere in Canada for a period of 3 years. [ 10 ] As they drove on passed the Garner Street residence on September 10 th , Const. Birchett relayed to Const. Pompeo everything he then knew about Mr. Gillespie. Because he had also seen a brown Saturn parked in the driveway of that residence, he used the laptop computer available in the police vehicle to query the status of Mr. Gillespie’s driver’s licence and confirmed that the prohibition was still in place. Thinking they might catch Mr.

Gillespie driving, the officers circled back to the Garner Street residence, but both he and the Saturn had disappeared. [ 11 ] On September 18 th , the two officers were again working as members of the Street Crime Unit. At around 21:00 hrs. they were heading north on Chemainus Road in the grey unmarked Chevrolet pickup approaching the traffic circle which manages intersecting traffic to and from Henry Road. Const. Pompeo was driving. As the police vehicle entered the traffic circle, a “beige” Saturn approached from the north on Chemainus Road and entered the traffic circle. Const.

Pompeo read the licence number and remarked to Const. Birchett that it looked like the same vehicle they had seen on September 10 th . Const. Birchett noted a male passenger in the front seat. He also recognized Mr. Gillespie as the driver and so advised Const. Pompeo. Although not identified by the officers until later, the male passenger was one Dale Brewer. The officers decided to conduct a traffic stop to determine the status of Mr.

Gillespie’s driver’s licence. [ 12 ] Constable Pompeo turned the police vehicle around and took off after the Saturn which had proceeded from the traffic circle up the hill on Henry Road toward the intersection with Highway 1. It was Const. Pompeo’s intention to stop it when it reached that well lit intersection. Shortly after they caught up to the Saturn’s, its left turn signal came on and it moved into the centre lane of Henry Road. At that point Const. Pompeo became concerned that the driver intended to turn into a driveway. He was aware Dale Brewer lived somewhere nearby. Mr.

Brewer was on the Detachment’s Prolific Offender Board and was someone Const. Pompeo believed to be both violent and unstable. [ 13 ] The Saturn continued in the centre lane of Henry Road for another half to three quarters of a kilometre. As the two vehicles were getting close to Highway 1, Const. Birchett contacted the dispatcher to advise her of their intention to conduct a traffic stop. Part way through his transmission the Saturn began to turn left onto Juniper Road. Const. Pompeo immediately reached to switch on the vehicle’s emergency lights, but hit the siren switch by mistake.

He quickly switched off the siren and turned on the red and blue emergency lights. [ 14 ] Exhibit 9 contains transcripts of all the critical radio transmissions relevant to the events at issue starting at 21:02:06 hrs on the evening of September 18, 2009. The time at which each transmission begins is logged at the top of each transcript. Exhibit 19 contains, inter alia, a DVD of each individual transmission.

By playing each DVD on a computerized “record player” which contains a running timer accurate to within a second, it is possible to determine with reasonable accuracy the time at which certain words were spoken and recorded sounds were heard. [ 15 ] The dispatcher acknowledged Const. Birchett’s attempt to radio their intention to stop the Saturn with the words “Car calling go ahead.” That transmission began at 21:05:02 hrs. Const. Birchett began to respond. Six seconds later, at 21:05:08, the sound of the siren, which lasted between 2 and 3 seconds, began.

Constable Birchett continued with his transmission and advised the dispatcher they were on Juniper Road. He gave her the licence number of the Saturn and added the comment that it did not look like “he” wanted to stop. After he repeated the Saturn’s licence number to the dispatcher that transmission ended.

It was then 21:05:27 hrs or 19 seconds after the first sound of the siren. [ 16 ] As that radio transmission was taking place the Saturn, followed by the police vehicle with emergency lights flashing, drove from the middle of the intersection of Henry and Juniper Roads down Juniper Road where it turned left into the driveway that services 3020 Henry Road. The two vehicles came to a stop with the police vehicle 1.3 meters behind the Saturn. Const. Birchett testified that, at the point where he was repeating the Saturn’s licence number to the dispatcher, both he and Const. Pompeo were still in their police vehicle.

When asked where the police vehicle was at that moment, he said he could not be precise but from what he recalled it was either close to the end of, or coming down, Juniper Road. [ 17 ] At 21:05:56 the dispatcher began a transmission advising that the Saturn was “active” to a registered owner out of Duncan.

Ten seconds later, at 21:06:06 there was a transmission which is recorded in the transcript as follows: “Dispatch, Hotel 22 we’ve got 33 (indiscernible).” That transmission was acknowledged by Constable Pompeo to be his attempt to give the dispatcher a Code 10-33, which means “Officer needs assistance” and he testified that by the time he began that transmission Mr. Gillespie had been shot. [ 18 ] Assuming the police vehicle had just come to a stop 1.3 meters behind the Saturn, when Const.

Birchett’s transmission repeating the licence number of the Saturn ended at 21:05:27 hrs, the entirety of the contact between the two occupants of the Saturn and the officers consumed at most 39 seconds before Mr. Gillespie was shot and Const. Pompeo began his Code 10-33 transmission at 21:06:06. [ 19 ] There were five eyewitnesses to what happened over the course of that 39 seconds: the two occupants of the Saturn, the two police officers and a neighbour, Mr. McGeragle, who lives next door to 3020 Henry Road.

As might be expected there are some significant differences in the recollection that each have of what transpired in that very short time span. [ 20 ] Mr. Gillespie testified he was driving Mr. Brewer home to the latter’s residence at 3020 Henry Road after they had decided not to attend an Alcoholic’s Anonymous meeting. His intention was to drop Mr. Brewer off in the driveway to that residence which runs between, and can be accessed from both, Henry and Juniper Roads. He was heading for the Juniper Road end of that driveway.

He acknowledged that he was then a prohibited driver as a result of the May 23, 2008 conviction. [ 21 ] He said that as he drove up Henry Road he was unaware the vehicle behind him was a police vehicle until, after moving into

the centre lane and putting on his left turn signal, he heard what he described as the “chirp” of the siren. He was then about half way through the turn onto Juniper Road. Immediately after that he saw the red and blue flashing lights behind him. He said he panicked, but as there was no place to go and no place to pull over he just continued into the driveway of 3020 Henry Road where he came to what he described as a controlled stop. He did not change his driving after he heard the siren and estimated his speed from that point on at no more than 5 kph.

He did nothing else in the car before coming to a stop in what he believed was a distance of about 70 feet and no more than 5 seconds after he heard the siren. He said he did not see any problem in travelling 70 feet into his friend’s driveway before stopping. [ 22 ] Mr. Gillespie testified that while he and Mr. Brewer were still in the Saturn he heard both police officers order them out of the car. He said he got out of the car as ordered.

He heard both police officers shouting “Put your hands on your head where we can see them, get down on your knees and get down on the ground.” He stood beside the car facing the police. The head lights from the pickup were blinding but he could see the police and it was then that he first saw Const. Pompeo’s gun. He said Const. Pompeo was beside the driver’s door of the pickup. The officer screamed at him again to get down on the ground. [ 23 ] Mr. Gillespie denied that he moved from his position after he got out of the car, either in the direction of the police officer or in the direction of the house.

He said he did exactly what Const. Pompeo ordered. He got down on his knees. As he reached in front of him to lie down he heard the shot and saw the flash. He denied that he had anything in his hands when he got out of the car or that he ever tried to put his hands in his pockets before he was shot. [ 24 ] According to Mr. Gillespie he was in shock after being shot. He could not believe what had happened. He could taste blood and was choking on it. At that point he said that Const.

Pompeo came up to him and, after either kicking or pushing him over on to his back, put the gun to his face and said “Don’t freakin move again or I will shoot you again.” [ 25 ] Mr. Gillespie testified he neither said anything to Const. Pompeo nor did he do anything aggressive toward him. He said as soon as he realized the police were behind him he knew he was “done”, that he was going to be charged with driving while prohibited and going to jail for 7 days, but that he did nothing to try to escape being caught and did not try to run away.

He denied that he accelerated the Saturn as he drove down Juniper Road and estimated about 15 seconds elapsed from the time he heard the “chirp” of the siren until he was shot. He estimated he was about 15 feet from Const. Pompeo when he was shot. [ 26 ] On cross examination he acknowledged that he is addicted to pain killers and was on methadone at the time he was shot. He also admitted that he had used cocaine prior to the night in question, although he was vague as to when that had last occurred, that he also used marijuana from time to time and that he was then taking diazepam on prescription.

He said the only drugs he had that day were 5 tablets of the diazepam. He also denied having drunk any alcohol that day. [ 27 ] He acknowledged that as he drove down Juniper Road he looked back at the police truck. He denied any other movement in the car and denied that he tried to grab Mr. Brewer’s backpack or to put anything in it. He did acknowledge that he might jokingly have said something to Mr. Brewer along the lines that they change places. However, he denied he really wanted to change places and noted that would have been futile in the circumstances.

He denied that he roared past the Henry Road entrance of the driveway to 3020 Henry Road or that he roared down Juniper Road, almost hitting a tree as he pulled into the driveway from that end. [ 28 ] During cross examination he repeatedly denied that he had reached into any of his pockets before being shot. He was asked to identify the clothing he was wearing that night from various photographs in evidence. He was reluctant to admit he was wearing a jacket. He was shown photograph 331 in Exhibit 1 which displayed two small pill vials, one of which contained marijuana, and a small pipe used to smoke marijuana.

He acknowledged they were his and said that if they were found in his jacket pocket then he must have been carrying them on the night in question. However, he denied that he put his hand in his jacket pocket in an effort to get rid of them. [ 29 ] He said that on the night in question he was not concerned that he would be caught in possession of marijuana even though he was on probation at the time, a term of which was that he should not be in possession of drugs. That, he said, was the least of his worries. According to him his probation officer would not breach him for possessing marijuana.

He denied that he lied to his probation officer and said she never asked him about his use of drugs. He was cross examined at some length and gave somewhat conflicting answers about when he had last used cocaine or consumed alcohol. [ 30 ] He denied hearing any command to get his hand out of his pocket, although he said he did make eye contact with Const. Pompeo and he did remember that at one point he looked over toward the “other police officer” but could not make out his face. He could not recall if he heard that other officer say “Bill” to him.

He reiterated that he went down on his knees and put his hands forward to go down on the ground when he was shot. He was asked if at that point he reached into his left jacket pocket with his left hand and his response was: “No that never happened.” [ 31 ] It was put to him that he recognized the police truck on September 10 th . He acknowledged that he had seen grey undercover “ghost cars” before, but denied having seen that truck before.

He said he did not know where Garner Road was and did not know anyone on Garner Road in Chemainus. [ 32 ] Finally, it was put to him that he was living at that time in the same house as an individual by the name of Daniel Topping Sr. and that some weeks or months before September 18 th he had suggested to Mr. Topping that they engage in creating a fictional motor vehicle accident in order that he could advance a fraudulent claim for damages. While he acknowledged that he shared a residence with Mr.

Topping, he denied making any such suggestion and pointed out that such a scheme would have been improbable as he was a prohibited driver. He also denied suggesting to Mr. Topping that he was going to make a lot of money by luring the police into shooting him so he could sue for damages. [ 33 ] Mr. Brewer confirmed that he lived at 3020 Henry Road and he acknowledged that prior to September 18 th the police had attended upon him at that address on a number of occasions. He said they were laughing and joking as Mr. Gillespie drove him home that evening.

However, when the flashing lights from the police vehicle came on, Mr. Gillespie panicked. He had to grab the steering wheel to ensure that Mr. Gillespie drove into the right driveway.

[ 34 ] He testified the car came to a stop 10 to 15 feet from the door to his suite which was on the ground floor of the residence. The flood light above that door was on. The police truck was right behind them, its lights shining in the back window of the car. According to him they were ordered out of the car “at gunpoint.” They both got out. [ 35 ] The two officers were standing behind the doors of the pickup truck. They were not wearing uniforms. He said they moved forward. He could see their guns, but because of the headlights from the truck he could not see their faces. He was told to get down and did so.

As he was going down he was looking over at Mr. Gillespie who, he said, had something in his hand. Once he was on the ground the officer on his side of the car had his knee in his back. From that position he said he could see Mr. Gillespie, either by looking under the vehicle or through the open doors of the Saturn. He did not hear Mr. Gillespie say anything or do anything aggressive. He did not see who shot Mr. Gillespie. [ 36 ] Under cross examination Mr. Brewer said he did not recall if Mr.

Gillespie had tried to reach into or put something into his backpack after the police lights came on and as they drove the short distance to his place. He did not recall making a number of statements that it was suggested he had made to that effect when question by the police. He did agree there probably was some movement in the car as it drove toward his residence with the police truck on its tail. He said both he and Mr. Gillespie got out of the car at the same time and he denied that when he did so he had his back pack in his hands. [ 37 ] Const. Birchett was called as a witness for the defence.

He testified the Saturn made a quick turn onto Juniper Road and once the siren sounded it accelerated. It continued to accelerate after the emergency lights were activated. He said to Const. Pompeo he thought the occupants might “bail” meaning he thought they were intending to run. Const. Pompeo agreed with him. The Saturn turned up a driveway and came to an abrupt halt. Both doors opened and both occupants immediately got out. He testified he focused on the passenger. At the time he did not know who the passenger was. [ 38 ] As he was getting out the passenger door of the pickup, he saw that Mr.

Brewer had fully exited the Saturn and appeared to have something in his hand. He drew his service pistol and held it at the low ready, i.e. the weapon pointed downwards toward the ground in from of him. He said “Stop, police.” At the same time he heard Const. Pompeo say something to the same effect. Mr. Brewer turned towards the inside of the open passenger side door with his back to the officer. He gave Mr. Brewer what he described as multiple commands to show his hands. Mr. Brewer instead made a motion toward the inside of the passenger side of the Saturn. He ordered Mr.

Brewer to “Get on the ground – do it now.” [ 39 ] At this point Const. Birchett raised his firearm from the low ready to the high ready position, i.e. the weapon pointed directly at Mr. Brewer. He did so, he said, because of his training. He explained that at that point there were several things going through his mind: why the vehicle didn’t stop sooner; why did the occupants quickly get out; why did Mr. Brewer appear to have something in his hand and what was it. Those things combined made him feel there was a potential threat. [ 40 ] Const.

Birchett shouted the command “Get on the ground – do it now” multiple times. Mr. Brewer turned back again at which point the officer could see that it was possibly a black backpack or a bag that he had in his hand. It appeared neither empty nor full, but the officer could see it had some contents in it. Instead of getting on the ground as directed, Mr. Brewer again motioned toward the inside of the Saturn. Const. Birchett gave him further commands to get on the ground. Mr.

Brewer stopped short of actually reaching in the car, looked at the officer with what the latter recalled was a frightened look and appeared to say “OK, OK”. Mr. Brewer then reached inside the Saturn and placed the bag on the passenger seat and began to comply with the commands by slowly, one at a time, placing his knees on the ground and eventually getting face down on the ground. [ 41 ] Throughout these events Const. Birchett could hear Const. Pompeo in the background giving commands to Mr. Gillespie. He could not recall what those commands were, but once Mr.

Brewer was on the ground and under his control he was able to hear Const. Pompeo yelling “Show me your hands” and “Don’t reach into your pocket.” At that point Const. Birchett turned his attention from Mr. Brewer and looked over at the driver’s side of the Saturn where he saw Mr. Gillespie standing by the driver’s side door with his left hand in his left hand jacket pocket. Const. Birchett yelled: “Bill, show us your hands.” Mr. Gillespie looked over with what the officer described as quite a blank stare and began slowly to remove his left hand from his left jacket pocket. [ 42 ] With that Const.

Birchett felt that Mr. Gillespie was starting to comply with Const. Pompeo’s demands and he turned his attention back to Mr. Brewer. In what he described as “a short time later” or, as he said on cross examination, “moments later” he heard the sound of a shot. He looked over and saw Mr. Gillespie lying on his back about 5 feet closer to Const. Pompeo than he had been when he spoke to him moments earlier. He asked Const. Pompeo if he was alright and if there was anything he could do. Const. Pompeo was on his radio advising that shots had been fired and that an ambulance was needed, Code 3.

He saw a female in the second floor window of the residence and he heard Const. Pompeo ask her to request an ambulance. [ 43 ] Const. Birchett turned his attention back to Mr. Brewer, who he then recognized from photos he has seen on the Prolific Offender Board in the detachment headquarters. He secured his side arm in its holster, handcuffed and searched Mr. Brewer and placed him up against a small shed beside the driveway. As he was doing all of this, he heard Const. Pompeo repeatedly ask Mr. Gillespie where he was hit. Within a few minutes Constables Cathro and Henderson arrived. [ 44 ] Const.

Birchett was shown photograph 81 which depicts a side view of the driver’s side of the Saturn with two red pylons in the foreground which had been placed there by Const. Cathro to mark the positions of Mr. Gillespie’s head and feet. He testified that, when he first got out of the Saturn, Mr. Gillespie was standing by the driver’s side door and was still in that position when he yelled: “Bill, show us your hands.” He reiterated that when he saw Mr. Gillespie after he was shot, he appeared to be five feet closer to the police vehicle. [ 45 ] Shortly after the arrival of other officers he and Const.

Pompeo were taken to the Detachment offices in Duncan. He had only brief a conversation with Const. Pompeo which consisted of asking how he was. [ 46 ] On cross examination Const. Birchett said he advised the dispatcher the Saturn looked like it was not going to stop because it had slowed down on Henry Road, which he described as “unusual”, following which it made a “quick” turn and accelerated out of the turn onto Juniper Road, which he said people “don’t usually do” and then continued to accelerate away from the police truck after the

lights and siren came on. He saw no movement of the occupants inside the Saturn as they followed it down Juniper Road. [ 47 ] As they drove down Juniper Road he felt the occupants were going to “bail” and he so advised Const. Pompeo who agreed. In his opinion the occupants did, in fact, bail as the vehicle came to an abrupt stop, both doors opened and both occupants exited. That, he said, was not a typical traffic stop. That is bailing or the attempt to bail. When asked if he ordered the occupants out of the vehicle he answered he did not recall that and he did not believe he did. [ 48 ] Const.

Birchett agreed that some of Mr. Brewer’s behaviour was threatening in nature. Although he could see a dark object in Mr. Brewer’s hand, when the latter first got out of the car, he could not see what it was. That was concerning. When he gave the command “Stop, police” Mr. Brewer reacted in what he considered an unusual fashion by turning his back toward the officer. That was more concerning. His concerns grew as Mr.

Brewer reached inside the Saturn on two occasions and then on the third occasion put what he by then had established was a small bag with contents that were unknown to him on the front seat of the Saturn. Throughout all of this he had made multiple commands to Mr. Brewer to show his hands and get down on the ground, none of which had been complied with by Mr. Brewer. [ 49 ] He was asked how long it took from the time he issued the first command to Mr. Brewer until the latter finally complied and got down on the ground.

Using a suggested 45 seconds as the total elapsed time from the corner of Juniper and Henry Roads to the sound of the shot, Const. Birchett estimated it took Mr. Brewer less than 40 - perhaps 30 – seconds to fully comply. He said he was as comfortable as one could be in those circumstances to give Mr. Brewer time to comply. He agreed that he kept repeating the commands to Mr.

Brewer because he realized that sometimes it takes time and multiple commands for people to recognize those commands and to comply. [ 50 ] It was put to him that when dealing with members of the public he has often observed that people put their hands in their pockets when they get nervous. He agreed he had often observed people put their hands in their pockets, although he could not say if it was because of nervousness or just because often people don’t know what to do with their hands. [ 51 ] Const. Pompeo testified he decided to stop the Saturn as soon as it began to turn.

After shutting off the siren he turned on the red and blue emergency lights. As he was doing this he noted the “Juniper Road” and “No Exit” signs at the entrance to Juniper Road. [ 52 ] The Saturn accelerated and swerved onto the wrong side of Juniper Road. He made the comment to Const. Birchett that it did not look like the vehicle was going to stop and Const. Birchett, who was in charge of the radio communications, reported that conclusion to the dispatcher. He said he saw a lot of movement inside the Saturn, but he had no specific recollection of what that movement was.

Seconds later, the Saturn stopped in a driveway which he later learned belonged to 3020 Henry Road. [ 53 ] He testified he had been trained to regard furtive or abrupt movements within a fleeing vehicle as a significant indicator of a threat, or to use the language of the training, as a significant “threat cue.” According to his training, such movement is an indication that the occupants are planning something, perhaps trying to hide evidence or, most concerning of all, attempting to access a weapon. [ 54 ] He testified that at that point “we” had no idea where we were going and everything began happening very quickly.

As he was putting the pickup into park, both men suddenly emerged from the Saturn. In his words, both men “turned and confronted us.” He again adverted to his training stating he had been taught to regard this as a huge threat cue, especially if one is dealing with somebody who has attempted to flee in a vehicle. As he put it, “You would expect such person to run, not turn and confront you.” He reiterated it was a huge threat cue. [ 55 ] When the occupants emerged from the Saturn, he recognized Mr. Brewer and Mr.

Gillespie and realized they were at the former’s residence although he could not remember the address. He said he was taking in a lot of information very quickly as he focused his attention on Mr. Gillespie. He described the lighting in the driveway as poor, there being to his recollection some ambient lighting in the area the source of which he was unable to describe, and shadows cast in and around Mr. Gillespie as well as an amount of dust that had been kicked up as a result of the vehicles skidding to a stop. [ 56 ] He said Mr. Gillespie came out of the Saturn with his hands at waist level.

Once again this was a threat cue and a huge concern. He had been taught that abrupt and sudden movements in the area of the waist band and pockets – “what we call furtive movements” – are indicative of someone attempting to access a weapon. The hands are a concern because, “we are instructed,” they are either weapons or the weapons delivery systems. [ 57 ] Mr. Gillespie’s eyes were wide open with what he described as “a thousand yard stare.” He was asked what he meant by that. He said it was as if Mr. Gillespie was looking right through him – almost a ”zombie like” stare.

When asked if it was comparable to how someone looks when stoned or high on drugs, he said Mr. Gillespie did appear to be high on drugs. He said what struck him was Mr. Gillespie’s eyes. He recalled that as he and Const. Birchett were pulling into the driveway behind the Saturn, Mr. Gillespie looked over his right shoulder at them and he could see the whites of his eyes. [ 58 ] Mr. Gillespie’s hands were in and around his pocket areas. Although he was unable to describe their movements, it appeared to Const. Pompeo as if Mr. Gillespie was trying to reach for something.

His training had taught him, and it had been his experience, that individuals will often secrete weapons in and around their waist and pocket areas. He said he had located hand guns on multiple occasions during traffic stops, including hand guns concealed on someone’s person during a traffic stop. He had also located other types of weapons almost routinely as a result of traffic stops.

He said that in the months previous to this date he had seized three illegal firearms from the streets of Duncan and he had received confidential information that there were a number of other firearms, including hand guns, outstanding within the community. [ 59 ] He said he had also been taught that people who are high on drugs can be unpredictable and violent and he described that he had previously been spontaneously attacked by persons in that state both physically and with other types of weapons. [ 60 ] While still in the pickup, he had noted that Mr.

Gillespie’s hands were moving although he could not describe how other than to say they were around his waist and pockets. Mr. Gillespie then moved his left hand into his left jacket pocket and reached for

something. He knew that Mr. Gillespie had previously “been located” in possession of a firearm and had committed the violent offence of robbery and his immediate conclusion was that Mr. Gillespie was attempting to access a weapon and specifically a firearm. With that anxiety in mind he began to dismount from the pickup, while at the same time drawing his firearm. [ 61 ] As he was getting out of the pickup he saw Mr. Gillespie remove his left hand from his left jacket pocket and discarded something rectangular and white to the ground. He said Mr.

Gillespie then began to advance on him from a distance which he estimated to be 10 feet. Mr. Gillespie’s hands remained in and around his waist and pocket area as he did so. The look on his face did not change. It remained a stone cold blank stare. He appeared to be agitated and his hands were moving in and around his waist and pockets area. [ 62 ] As soon as he was out of the pickup, his pistol was pointed directly at Mr. Gillespie with his trigger finger on the frame of the weapon.

He shouted “Police, stop, get on the ground.” Throughout what followed he yelled “Don’t reach in your pockets”, “Get on the ground” multiple times. He was beginning to get scared at this point because Mr. Gillespie was continuing to advance with his hands in and around his waist and pockets and disregarding his commands. As he continued to advance, Mr. Gillespie reached again into his left jacket pocket with his left hand. Const. Pompeo yelled “Don’t reach into your pockets.” [ 63 ] In response to that command Mr. Gillespie looked at Const.

Pompeo with that same look and then “scanned” over in the direction of Const. Birchett. Const. Pompeo felt he was “behind the eight ball” and he was scared. At that point he believed Mr. Gillespie was “indexing” or trying to retrieve a weapon and was about to use it against either himself or his partner. He felt as though there was an attack of some sort coming and he moved his finger from the frame of his pistol to the trigger. He explained that he was taught to keep his finger on the frame of his pistol and off the trigger until such time as he felt it necessary to actually fire a shot.

As he put it; ...the finger “only goes to the trigger upon feeling an imminent or potential threat that is coming. That does not mean you are going to fire a shot at that time. It just means you are one step closer. Your threat assessment is going up. [ 64 ] He said he had been taught to assess and constantly reassess what is happening in situations such as this one. He was doing that and reacting to what was happening in front of him.

He was very scared at the time: I had never before experienced somebody advancing on me after fleeing in a vehicle, making blatant movements and gestures suggesting they were reaching for a weapon while at gunpoint. I was scarred. I was very anxious. [ 65 ] Just as he moved his finger to the trigger, Mr. Gillespie’s hand came out of his pocket with nothing in it. He had not yet decided to fire at that point. He felt a sense of relief and moved his finger back to the frame of his pistol. [ 66 ] Upon removing his left hand from his left jacket pocket, Mr. Gillespie proceeded to slowly lower himself to the ground.

He estimated Mr. Gillespie, who he said had veered off to his left as he moved forward towards him, had then advanced toward him to the point where his head, shoulders and hands were approximately 5 to 6 feet away from him, off to his left and outside the cone of the pickup’s headlights. It was dark where he was lying. He was not in a “classic” prone position but had propped himself up on his elbows with his hands or fists under his body. It was, he said, very dark. [ 67 ] Mr. Gillespie had a crazy look in his eyes and he began to ramble. Const. Pompeo did not know what he was saying as it sounded unintelligible.

He could see that Mr. Gillespie’s fists were clenched, but he could not see if there was anything in the hands. He repeatedly yelled “Extend your hands away from your body.” Unfortunately Mr. Gillespie did not listen to his commands. Rather he propped himself up on his right elbow and angled his upper body towards Const. Pompeo. With his left hand he then proceeded to reach for his left jacket pocket. Const. Pompeo described this motion as very similar to the motion of someone trying to retrieve a weapon, potentially a firearm. He was very scared at this point.

He thought “Holy Shit.” His eyes felt like they were going to pop out of his head and he was convinced that the next thing that was coming out of Mr. Gillespie’s pocket was a weapon. [ 68 ] He described how he had been trained with respect to what he called the physiology of action vs. reaction, the gist of which is that action will always beat reaction. As a result of that training he knew that, if he allowed Mr. Gillespie to get hold of the weapon in his pocket, he was well within range to lunge at him with an edge weapon or, with a simple flick of the wrist, to fire a gun at him.

In so far as the latter alternative was concerned, Const. Pompeo testified he had once seized a firearm that could fit in the palm of ones hand. In short, he knew that if he allowed Mr. Gillespie to access the weapon he was then convinced he had in his left jacket pocket, he would not be able to react in time with the result he could have been very seriously injured or perhaps killed. Thus, when Mr. Gillespie’s hand reached his jacket pocket, he once again moved his finger from the frame of his pistol to the trigger.

He said: Based on my training and previous experience and on the situation as it unfolded in front of me, I knew that if I allowed him the opportunity to grab hold of that weapon, there was no way that I was going to be able to react to that in as safe manner as I could in that situation. It was at that point that my finger went back to the trigger and I fired. [ 69 ] Const.

Pompeo testified he was very scared at that time and would not have fired his pistol if he had not felt that way, as he put it, “based on the totality of the situation as it unfolded in front of me.” He was asked why he did not use his pepper spray or his baton. His response was that he had been taught always to maintain a tactical advantage. He believed he was facing a lethal force threat and he had been trained to meet a lethal force threat with lethal force.

His decision to fire was the result of his training, and specifically that part of the training that emphasized “action will always beat reaction.” [ 70 ] After the shot was fired, he felt numb. He scanned over to Const. Birchett to see if he was alright. He then turned his attention to Mr. Gillespie who had rolled over onto his back and was lying with his feet toward the Saturn and his head toward the police truck.

He attempted to radio for help. [ 71 ] As previously noted, his first attempt began at 21:06:06 and is transcribed in Exhibit 9 as: “Dispatch, Hotel 22 we’ve got 33 (indiscernible).” He was unsure whether his first transmission went through. He saw two people who had come to the second storey window of the residence. He asked them for the address and to call an ambulance right away. He then pushed the red button on his boom mike to engage the automatic Code 33 message.

He followed up with several more transmissions, including one in which he recited the address which he had received from the two people in the window. He then waited for back up to arrive, again as he had been trained to do. While waiting, he continued to point his weapon at Mr. Gillespie and to ask him where he had been hit. Less than 2½ minutes after Const. Pompeo’s first transmission at 21:06:06, Constables Cathro and Henderson arrived at the scene almost simultaneously. [ 72 ] Const. Pompeo had no recollection of anything said by Const.

Birchett and no recollection of anything he may have said to either Const. Cathro or Const. Henderson when they arrived. [ 73 ] In response to a request that he describe some of his experiences involving suspects with weapons, he related an incident in which the driver of a car which had been stopped had obeyed commands to get down on his hands and knees but ignored commands to go completely prone. Instead he lay down on the ground but concealed his hands out of sight beneath his body. He refused to show his hands. A brief struggle ensued with one of the other members.

After he was successfully restrained in handcuffs, it was discovered that he had a knife and an uncapped hypodermic syringe in his possession. [ 74 ] A second experience he related involved him as a member of the Emergency Response Team executing a warrant of arrest in early 2008 with respect to a subject who was known to be violent and to have access to firearms. There was some delay getting into the motel room where the suspect was believed to be. When Const. Pompeo finally entered the dark room the suspect was sitting up in bed facing him.

A struggle ensued during which the suspect appeared to be trying to reach under the covers and in the area of the pillows on the bed. After he was secured, a loaded .44 Magnum handgun was found under the pillow he had been reaching for. He was asked how this incident factored into his decision to shoot Mr. Gillespie on the night of September 18, 2009. He replied that “close calls” such as this were always in the back of his mind whenever dealing with a suspect. [ 75 ] After reviewing a number of pages from a use of force training manual entitled Incident Management & Tactical Principles, Exhibit 27, Const.

Pompeo finished his examination in chief by listing the “factors” that caused him to fear bodily harm or fear for his life and which, in turn, caused him to fire his pistol at Mr. Gillespie: He and Const.

Birchett were dealing with two people known to be heavy drug users who had criminal records which included violence, circumstances which his training and experience told him meant they could be both unpredictable and violent; The fact that the vehicle had chosen to flee down a dark road with the result they initially did not know where they were going to end up; The speed at which the situation had unfolded which made it impossible for them to formulate a plan; The surrounding environment which made it very difficult to see – there was some ambient lighting in the area, but dust had been kicked up as a result of the skid; Poor radio communications which made it impossible to advise dispatch where they had ended up; And finally, the greatest concern, the behaviour of Mr.

Gillespie in which he chose to blatantly ignore his commands, exiting the vehicle prior to being asked to do so, and advancing on him while at gun point making blatant movements and gesture to suggest that he was armed, combined with his previous knowledge and experience with respect to firearms in vehicles and his knowledge of firearms on the streets of the Cowichan Valley. [ 76 ] On cross examination Const. Pompeo conceded that, apart from the left turn signal being on for a long time, there was nothing out of the ordinary with the Saturn’s driving as they proceeded up Henry Road.

The driving was legal and controlled and the Saturn’s turn onto Juniper Road was controlled. [ 77 ] However, once the emergency lights came on, he immediately concluded that the occupants were trying to flee and he described again how the car accelerated and drove on the wrong side of Juniper road before coming to what he described as an uncontrolled stop. It was suggested to him that there was no place to flee to, Juniper Road having been noted by him to be a “No Exit” road.

He agreed that was what was “so bizarre”, but the driving behaviour was such that he was certain the occupants were trying to get away from them. He said he did not re-evaluate his decision in that regard when he saw the “No Exit” sign. There was no time to do so, things evolved too fast. He said the police vehicle remained close behind the Saturn until both came to a stop. [ 78 ] He acknowledged that he had been to the Henry Road house before although he doubted he had used the Juniper Road entrance on that occasion. Once both vehicles came to a stop he realized they were at Mr.

Brewer’s residence where he had been before and he knew that the driveway they were on continued through to Henry Road. [ 79 ] It was put to him that he believed he was in a dangerous situation from the moment he activated the emergency lights. He did not disagree but said everything was culminating and that his risk assessment was quickly rising from the point he decided the occupants of the Saturn were going to flee. It was then put to him that he had formed the belief that Mr. Gillespie had a gun even before he got out of the police vehicle. His response was that as soon as Mr.

Gillespie got out of the Saturn and started reaching for something, “...I was concerned he was reaching for a weapon, absolutely.” He was asked if Mr. Gillespie reaching for a weapon was his most important concern at that time. His response was, “Absolutely, in terms of officer safety.” He was asked if his most important concern, above all others, was that Mr. Gillespie had a firearm and he replied. “Absolutely.” He agreed that all of his observations from that point on were in relation to Mr. Gillespie having a firearm.

[ 80 ] He was asked by myself to describe, if he could, when he first fixated or began to focus on the possibility of Mr. Gillespie having a firearm in his possession and he responded it was as soon as Mr. Gillespie exited the Saturn and began making “those sudden...deliberate movements.” He confirmed this was before he himself had exited his vehicle. [ 81 ] He denied that he and Const. Birchett got out of their vehicle first or that he ordered the occupants out of the Saturn. [ 82 ] Const. Pompeo described how, as he was getting out of the pickup, Mr.

Gillespie reached into his pocket and discarded the white object and began immediately to advance toward him. Once he was out of the truck he yelled “Police Stop”, but Mr. Gillespie did not stop. He continued to veer off to the left and advance toward him. He continued to do so as he reached his left hand into his pocket a second time and looked over toward Const. Birchett. His forward motion continued even as he went down to the ground, although Const.

Pompeo acknowledged that some of that forward motion would have resulted from that very action. [ 83 ] He agreed that his observations were affected by what he described as fear induced stress. He was experiencing a bit of tunnel vision and he was also suffering from what he called audio exclusion. Thus there were some things happening that he did not see or hear and some things of which he has no recollection. He had never before seen a suspect blatantly ignore commands while advancing in the face of a pointed weapon. Everything Mr. Gillespie was doing was suggestive of him being armed.

Everything that had happened up to the point where he fired his pistol led him to the conclusion that Mr. Gillespie had a firearm in his left jacket pocket. [ 84 ] He agreed that failure to recognize any circumstance unfolding in a situation like that, including circumstances that were not threat cues, could lead to grave consequences, such as an over reaction. He agreed that Mr. Gillespie said nothing of an aggressive nature to him, but noted that even saying nothing can be a threat cue. Anything can be a threat cue, he said, if the officer perceives it as such.

He said he could not recall any circumstance in what unfolded from the time Mr. Gillespie got out of the Saturn until he was shot that was not a threat cue. [ 85 ] Following a brief re-examination, I asked Const. Pompeo to clarify some of his evidence in chief which suggested that Mr. Gillespie’s hand only went to, and not into, his left jacket pocket on the third occasion as he lay propped up on his right elbow. In reply he was adamant that he saw Mr. Gillespie’s left hand go into his left jacket pocket. The following exchange then took place: Q All right.

Well, you -- when his hand went into his pocket on the second occasion, that is when he is still standing and just before he looked over to Const. Birchett, you had your firearm, as I understand it, pointed directly at him with both hands? A Yes, Your Honour. Q And you moved your finger from the frame to the trigger? A Yes. Q You then moved your finger back to the frame when he took his hand out. A Yes. Q Did you wait to see if there was anything in his hand before you did that? A I just remember seeing the hand come out, um and there -- nothing being in it at that time.

And yes I de-escalated from there, because I certainly didn’t feel the need to shoot obviously at that point. I don’t - - Q You didn’t feel the need to shoot before that? A No I -- like I said, I was -- everything was happening very fast. It was very instantaneous. I certainly didn’t want to shoot. As my hand got to the -- my finger got to the trigger, the -- the -- it was -- his hand came out very quickly. His -- it was all -- it happened -- it was very fluid. The -- I was yelling at him, hand went to the -- hand was going for the pocket, got into the pocket.

And his hand was in and out of his pocket by the time I was able to react and move my finger down and back up again, if that makes any sense. Q Al right. Well he was in a much better position at that point to remove a weapon from his pocket, if he had one, and shoot you. He was standing, presumably stably on the ground. A I -- I agree, your Honour. I was -- I – I didn’t want to have to do it. I was -- I was scared. That’s the best way I can describe it. It all -- as I was reacting to that his hand came out of his pocket. Q So, on the third occasion, his hand never came out of the pocket?

A Well, I -- I fired the shot as -- once his hand was in the pocket, that’s when I fired, and that’s when everything progressed. Q Now, I know it was -- it was a traumatic event for you as well as for him. And I – and I understand much of what you’ve said about how you felt and how you were reacting, but is there any way you can describe to me today, what you saw then as the difference between the second time he put his hand in his pocket, and the third time he did so, while balancing basically in a three point position with his right elbow and his two knees on the ground and with his hand back?

A It was the repeated efforts to do so. He was even closer to me at this point, Your Honour. I -- I know that a -- a firearm can be fired with a single flick of a wrist. And leading up to that point, I was behind the eight ball the entire time, and I didn’t feel like I had any choice. It’s – I was convinced the next thing that was coming out of that pocket was a weapon. It was the repeated efforts to go back to it, even with everything that I was yelling and screaming at him and... Q All right. I think that’s it.

[ 86 ] The final eye witness was Frank McGeragle the neighbour living next door to 3020 Henry Road. He was called by the Crown. [ 87 ] Mr. McGeragle’s driveway runs parallel to and shares the same Juniper Road ramp as that belonging to 3020 Henry Road. He had just parked and dismounted from his car after a brief shopping trip when he heard the sound of a siren followed by what he described as the sound of a car “ripping” or travelling at a high rate of speed down Juniper Road.

His estimate of speed was based on the sound of the tires on the seal coated surface of Juniper Road which he said has lots of gravel on it. The sound of the siren continued he thought for as much as ten seconds, indicating to him that “someone was not stopping.” He was shown a so-called “scale” drawing, Exhibit 5, and asked to point out his position when he first heard these sounds. He indicated he was in the trees just to the right, or east, of the number “1” in the notation “19.2m” on that drawing. [ 88 ] A car pulled into the driveway at 3020 Henry Road and stopped quickly.

Still carrying his grocery bag, he stepped out from the thin line of trees separating the two driveways to see what was going on. The police vehicle pulled in behind the car with its lights flashing. The two police officers jumped out shouting “Police. Get out of the car. Get down on the ground.” The two men in the car got out quite quickly – “almost immediately.” [ 89 ] He began walking forward slowly down the driveway of 3020 Henry Road toward the two vehicles. He saw the passenger comply with the command to “Get down on the ground” quite quickly. He focused on the driver who did not.

He described the driver’s body language as that of a person who felt the police were making a mountain out of a mole hill. [ 90 ] The driver was being screamed at by the police officer he was facing. Eventually he got down on his knees and put his hands on the ground as if to go all the way down. He then paused and first his left hand followed by his right hand came back toward his pockets. They sort of “fluttered” like the wings of a bird close to but not in his pockets. Mr. McGeragle said it almost appeared as if the driver was either confused or teasing the officer.

The police officer yelled “Get your hands away from your pockets” three times in rapid succession. The third repetition was followed immediately by the sound of a shot. [ 91 ] Mr. McGeragle said he could see these events clearly as they unfolded. He had walked down along the cement retaining wall on the west side of the driveway about half the distance between where he was when he first heard the sound of the siren and where the vehicles were stopped and was standing beside the cement wall which can be seen in many of the photographs of Exhibit 1, including most particularly photos 175, 178, 179 and 182.

When asked to describe the lighting he said there was a motion sensored spot light above the door to Mr. Brewer’s suite and the lights of the police vehicle were on. [ 92 ] He estimated he was standing at about a 15° angle to Mr. Gillespie’s left side or profile. In that position, the police officer was facing toward him and Mr. Gillespie was between them. He estimated Mr. Gillespie was about 6 feet from the police officer, but he stressed he was not taking measurements. [ 93 ] After the shot, he hung his bag of groceries on a steel pole that was in the concrete wall beside the driveway and walked toward Mr.

Gillespie. At that point the police officer who had fired the shot asked him who he was and whether he knew first aid. When he replied he did not know first aid, he was told to get back. He heard the officer shout “Shots fired” several times and ask someone to call an ambulance and 911. He then decided to walk back to the Henry Road entrance to the driveway to wait for the ambulance. [ 94 ] He said that, after he got out, Mr. Gillespie stayed by the open door of the car. When asked whether Mr. Gillespie moved from that spot, he said there was some motion but he “...did not go for a walk” or try to leave.

He described Mr. Gillespie as shifting from foot to foot while being ordered to the ground. While he did not have a clear recollection he said Mr. Gillespie may have moved sideways two or three feet as one naturally does when getting out of a vehicle. The police officer did not move. From the sound of his voice Mr. McGeragle said the officer appeared to be wound up very tight. The tone of his voice was anxious and uptight. Mr. Gillespie did nothing that he would characterize as aggressive and he did not hear him say anything before he was shot. [ 95 ] He was adamant that Mr.

Gillespie’s left hand did not enter his pocket before he was shot. [ 96 ] On cross examination he agreed that things happened very fast and that he could not say for sure whether the men got out of the car first or the officers shouted “Police. Get out of the car. Get down on the ground” first. He said it happened so fast it could have been either way. He did not see the police officer kick or put handcuffs on Mr. Gillespie. [ 97 ] He was asked to estimate times and said he thought it took about 10 seconds for Mr. Brewer to go down and be handcuffed.

He estimated the entire incident, from the time the vehicles pulled into the driveway until the shot was fired, was less than a minute. [ 98 ] Other witnesses of note included Taralee Vesey and David Campbell, both 17, who were watching TV in Ms. Vesey’s bedroom at 3020 Henry Road on the evening of September 18 th . Just as a movie was beginning at 21:00 hrs, they both heard loud shouting followed by a shot. They went to the upstairs living room window overlooking the driveway and observed the aftermath of Mr. Gillespie being shot. [ 99 ] Ms. Vesey was unable to recall what was being shouted.

However, she had no difficulty seeing the entirety of what was unfolding below once she and Mr. Campbell got to the living room window which she identified as that shown in the lop left hand corner of photograph 152 and the top right hand corner of photograph 185, both of which are in Exhibit 1. She described the lighting which provided her with good visibility, as she put it, of everything except that portion of the driveway close to Henry Road. That included the sensor light above the door to Mr.

Brewer’s ground floor suite which was immediately below and to her right of the window from which she made her observations. As well, the lights in the house were on in all the rooms behind the three big windows on that side of the house. [ 100 ] In response to a request from the police officer holding a gun pointed on a man lying on the ground, Ms. Vesey called 911 to request an ambulance. She saw Mr. McGeragle walking toward the man lying on the ground and she heard him being told by a police officer to stay back.

On cross examination it was put to her that she heard the police officer holding the gun asking the man lying on the

ground where he was hit. [ 101 ] Mr. Campbell had no reliable recollection of the events with the result his statement obtained at 00.55 hrs on September 19 th was filed as Exhibit 18. In it he said he heard the words “Put up your hands” being shouted repeatedly before they got to the window. Once at the window he saw two police officers with their guns drawn and two vehicles. One he described as a “Pontiac” with both its front doors open and a man lying on his back about 4 feet from and parallel to the driver’s side of that car with his head about level with its back bumper.

Behind it was a pickup which he described as a “ghost car” with red and blue flashing lights and headlights with the high beams flashing on and off. The police officer standing beside the pickup was asking the man on the ground where he was hit. He too saw Mr. McGeragle walk toward the man on the ground and heard him being told to stay back. [ 102 ] Const. Cathro heard Const. Pompeo’s 10-33 call at 21:06:06 hrs. and headed immediately for 3020 Henry Street. He arrived less than 3 minutes later after being re-directed to the Juniper Road entrance to the driveway in question. Const.

Henderson arrived immediately behind him. As he walked up the driveway from Juniper Road he saw Const. Pompeo standing between the door to his pickup and Mr. Gillespie lying on the ground beside the rear wheel and trunk area of the Saturn with his head toward Const. Pompeo. He went immediately to Mr. Gillespie and did a pat down search for weapons. He found none. He did locate two pill vials and what he described as a crack pipe in one of Mr. Gillespie’s front pockets, although he could not say which pocket. He then administered “first aid.” [ 103 ] Together with Const. Wood, he marked the location of Mr.

Gillespie’s head and feet with the red pylons which feature in many of the over 400 photographs taken of the scene, but most particularly in photos numbered 81 and 82 of Exhibit 1. [ 104 ] On cross examination he was asked if he overheard Const. Pompeo say anything to Const. Henderson after the latter arrived on scene. He replied that as Const. Pompeo was being led away from the scene he heard him say something to Const. Henderson to the effect: “I told him to show me his hands.

I told him to show me his hands.” He was then asked to refer to his statement, taken at 02:11 hrs on September 19 th , and agreed that at that time his recollection was that Const. Pompeo said something to the effect: “He wasn’t showing his hands.” [ 105 ] Const. Henderson was on a back road near Fuller Lake when he heard the 10-33 tone on his radio and then heard Const. Pompeo’s 10-33 transmission. He immediately headed for Juniper Road, that being the last location of Const. Pompeo he had heard on the radio when Const. Birchett had called dispatch to advise of the check stop. He arrived right behind Const.

Cathro and went immediately to Const. Pompeo who he very quickly removed from the scene. [ 106 ] On cross examination, he was asked to describe any conversation he had with Const. Pompeo. He said he asked Const. Pompeo if he was alright and received an affirmative response which included Const. Pompeo making a pushing motion downwards into his pants pockets and repeating twice “He kept going for his pockets.” [ 107 ] Daniel Topping Sr. was called as a defence witness. In the summer and fall of 2009 he was living with Mr. Gillespie. He testified they did drugs, including cocaine, together. He said Mr.

Gillespie was always trying to get some “scam” going. On one occasion Mr. Gillespie suggested they fake a motor vehicle accident together so that he could claim damages. On another occasion Mr. Gillespie said that no matter how long it took he was going to get the police to shoot him so he could sue and make some real fast money. [ 108 ] On cross examination he agreed that he and Mr. Gillespie got into a dispute at some point and he moved out, losing his damage deposit. He also agreed that he did not mention Mr.

Gillespie’s “scams” involving a fake motor vehicle accident or having the police shoot him when he was first interviewed by the police in September of 2009. It was not until February of 2010, while under investigation for “prescription fraud” that he brought these matters to the attention of the police. [ 109 ] Finally, there was the evidence of John McKay a retired City of Vancouver police officer who I ruled was qualified as a police use of force expert entitled to offer an opinion whether Const. Pompeo followed standard use of force training as he dealt with Mr. Gillespie. Mr.

McKay was called as a witness for the defence. [ 110 ] Mr. McKay’s evidence was heard at length on a voir dire , following which I delivered written reasons for my ruling on November 13, 2012. As a result of that ruling, it was agreed by counsel that Mr. McKay’s evidence on the voir dire could become evidence on the trial. While that was a sensible approach to take in the circumstances, it resulted in a somewhat complicating side effect in that a good deal of Mr.

McKay’s evidence on the voir dire was not admissible. [ 111 ] In particular, much of his evidence in chief was devoted to leading him through his written report which he had prepared before the trial. Although I held that Mr. McKay could offer opinions related to whether certain actions by Const.

Pompeo were consistent with standard use of force training, I also ruled that his written report would not be admitted as evidence because it became obvious during the course of the voir dire that it was based upon a very considerable amount of evidence that was not part of the record before me which, by then, was complete. [ 112 ] Accordingly, in what follows I will refer to some, but not all, of those portions of Mr. McKay’s evidence which I find to be admissible. [ 113 ] As I made clear in my ruling on November 13 th , that portion of Mr.

McKay’s evidence that was devoted to describing standard use of force training for police officers in Canada was obviously admissible outside of any consideration of the opinion rule as it was merely descriptive of the various use of force training modules or protocols. In that regard he described both the Incident Management Intervention Model (“IMIM”) used by the R.C.M.P. and the National Use of Force Framework (“NUFF”) which is used by most other police forces in Canada.

Although in his career as a police officer he had more to do with the latter, he described them as essentially the same in terms of their descriptions of “subject behaviour” and corresponding police “force response options.” [ 114 ] By way of a general description of the training that Const. Pompeo would have received, the subject behaviour categories in the

circular representation of the IMIM, marked as Exhibit 27, include: co-operative, non co-operative, resistant, combative and death or grievous bodily harm. The force options which accompany the transition through those behaviours include: officer presence, verbal intervention, empty hand control (soft), empty hand control (hard), intermediate devices, impact weapons and, finally, lethal force.

At the very centre of the model, no doubt to highlight its importance, is the reference to “situational factors” which is a reference to what a police officer perceives and includes not only the behaviour of the suspect, but also all circumstances of the “environment “ in which that behaviour is unfolding.

On the extreme outside of the circular model is repeated the instruction, “tactical repositioning” which not only emphasizes the need to make physical adjustments in the officer’s response to the perception of the subjects unfolding behaviour, but also the need to re-assess the officer’s perception of that behaviour as it evolves. [ 115 ] In the course of answering a series of hypothetical questions put to him during his direct examination, Mr.

McKay offered a detailed description of some aspects of standard or typical training with respect to how a subjects behaviour should be interpreted by an officer in the context of a situation leading up to and including circumstances in which the use of lethal force by that officer becomes necessary. He never had a short answer to any question asked of him and often included an explanation of assumptions, if not presumptions, about human behaviour which were said to underlie or explain the training. [ 116 ] For example, when referred to Const.

Pompeo’s evidence that he saw movement by the occupants of the Saturn as he followed it down Juniper Road, he said that officers are trained to pick up as much information as they can about the occupants of a vehicle they intend to stop, including watching for any movement by those occupants because, while such movement may mean absolutely nothing, it could mean something pretty damaging or dangerous to them. [ 117 ] Relating the training modules reference to “situational awareness” to the circumstances of this case, Mr. McKay pointed to the fact that it was night time when the confrontation between Mr.

Gillespie and Const.

Pompeo began, that there was “a bit of a pursuit” and the car did not pull over right away but ended up on a “gravel road in a rural “closed” area, that there was movement in the car before it came to a stop and that visibility was poor as all being part of the “intel” or circumstances that a police officer would be trained to take into account. [ 118 ] Similarly, officers are trained that they do not want subjects to get out of the car being stopped because that is really an “odd thing” and means that the officers are facing a situation that is not normal. [ 119 ] He was then asked about the so-called thousand yard stare.

He described it as a stare by someone who is locked onto something such that they are staring right through you – at something a thousand yards behind you - and not listening so that no matter what you are saying to them, it is not registering with them. They are not cognizant.

Officers are trained that this is a threat to them because the subject is “locked on.” Alternatively, he acknowledged the individual’s stare may be evidence he is “stoned” on drugs, which is not the same thing as a thousand yard stare, but nonetheless dangerous because officers are trained that people who are high on drugs are unpredictable and can be violent. [ 120 ] Turning specifically to Const. Pompeo’s description of Mr. Gillespie’s actions after he got out of the Saturn, Mr. McKay was asked to describe what training police officers are given with respect to Mr.

Gillespie: ...reaching in and around his waistband area with his hands and actually putting his left hand into his left pocket and discarding something white. [ 121 ] His response was that hands are either the subject’s weapons or weapon’s delivery system. So officer’s are trained to look out for what the subject is doing with their hands and in the context of the quick exit from the Saturn and the pitching of “something” it starts to become a risk to the officer.

Knowledge that a subject has a criminal record for violence, such as a robbery conviction coupled with a conviction for possession of a firearm, would be information that an officer would be trained to regard as adding significantly to that risk. [ 122 ] He testified that police officers are trained to recognize certain behaviours and body language as threat cues. Threat cues include such things as the subject getting out of the car that has just been stopped, hands in and about the waist and pocket areas, a thousand yard stare and reaching toward pockets where people secrete weapons.

When those threat cues combine, as it was put to him they did in this case, an officer’s training will tell him the subject must be searching for a weapon and the totality is starting to become clear that this is an attack upon the officer. [ 123 ] Thus, in his opinion, Const. Pompeo followed training when he unholstered his weapon and raised it to the high ready position, i.e. pointed directly at Mr. Gillespie, in response to those threat cues. Mr. McKay explained that training is predicated on overcoming the problem of action by the subject verses reaction by the officer, a contest the officer can never win.

In other words, police officers are trained that action always beats reaction. That said, police officers are trained, he said, that when pointing a firearm at a subject the trigger finger remains on the frame of the weapon until the officer “starts to think” he is going to shoot. [ 124 ] Officers are also trained to maintain an adequate “reactionary gap”, which is the term used to describe the minimum distance that should be maintained between a subject and the officer. That training includes the proposition that a subject can cover 30 feet in two seconds from a standing start.

While 30 feet is not a practical reactionary gap for police to maintain, officers are trained that a distance of 6 to 10 feet, depending on the size of the subject, is a minimum to enable them to thwart a subject’s sudden forward movement. [ 125 ] It was then put to him that Mr. Gillespie was continually moving forward and to Const. Pompeo’s left as the officer had his pistol trained on him, and he was asked what this would mean from a training perspective.

His response was that a police officer would be trained to recognize this as the subject invading his space and that such movement, in combination with all the other threat cues already discussed, “without a doubt would be an attack on the officer.” [ 126 ] As for Mr. Gillespie moving to Const. Pompeo’s left, Mr. McKay said officers are trained to regard such movement as an “outflanking” manoeuvre designed to draw the officer out from behind his cover. The trained response is to order the subject down to the ground, flat on his face with his arms outstretched.

[ 127 ] It was then put to him that Mr. Gillespie went to his knees and down, but not flat and was 4 to 6 feet from Const. Pompeo when he propped himself up on his right elbow and reached with his left hand into his left pocket. He was asked what the training would be in that situation. Mr.

McKay’s response was: Well, the training is, is that if all these small behaviours all add up and come to the point where the officer believes that his life is in danger, somebody else’s life is in danger, from a deadly force threat, that he can use deadly force in return to prevent himself from being killed or seriously hurt. [ 128 ] In short, Mr. McKay was of the opinion that Const. Pompeo escalated through the relevant use of force options as he was trained to do and that his actions were within training and use of force parameters. [ 129 ] On cross examination Mr.

McKay acknowledged that filmed re-enactments and statements not in evidence were an important part of the consideration leading to his initial written opinion. [ 130 ] Of the over 400 photographs provided to him, all of which he said he reviewed, he considered only 7 to be of any significance. Those photographs were primarily of the area beside the passenger side of the Saturn. He said he viewed them in an effort to see whether Mr.

Brewer could actually have seen something that, apparently, he said he had seen in one of his statements. [ 131 ] Until he attended the trial he was not aware that the orange pylons visible in many other photographs marked Mr. Gillespie’s position after he was shot. He said he relied on the statements of the two police officers and Mr. McGeragle for his understanding of where Mr. Gillespie was both before and after he was shot. From the latter’s statement he understood Mr. McGeragle made his observations from a distance of 60 ft from Mr.

Gillespie’s position when he was shot. [ 132 ] He agreed that in addition to focusing on potential threat cues, officers are trained to keep the whole picture in focus so as to avoid tunnel vision. Situational awareness involves the bigger picture and requires that the officer be aware of everything that is going on around him. The use of force training that officers get includes maintaining situational awareness at all times. The IMIM training also stresses the need for officers constantly to re-assess their situation so as to take in new information.

It is a continuous process the purpose of which is to enable the officer to escalate and de-escalate his response to the subject’s behaviour as that behaviour changes. [ 133 ] He described the IMIM as a heuristic.

As he put it, you can use it to assess the officer’s actions against the subject’s behaviours in order to determine if the force used by the officer was reasonable in the circumstances or whether it was excessive or inadequate. [ 134 ] He agreed that every force response described in the IMIM is applicable to a range of subject behaviours and therefore does not demand an exact response to any given behaviour. The officer’s perception is critical to the decision how to respond.

He agreed that two officers faced with the same subject behaviour and the same situational factors might come to different conclusions as to the appropriate response. He also agreed that officers can perceive a subject’s behaviour incorrectly. [ 135 ] He agreed that police should put public safety before personal safety, although he said there were views to the contrary. [ 136 ] On re-examination he said the position of the cones in the photographs, which he had not considered significant before he attended court, reinforced the understanding he had of Mr.

Gillespie’s position both before and after he was shot, when he wrote his opinion. [ 137 ] In answer to a question from me, he said that prior to coming to court he had relied entirely on the witness statements at his disposal to gain an understanding of the relative positions of Mr. Gillespie and Const. Pompeo when the shot was fired. As a result, he understood that Mr. Gillespie was “somewhere between 3 and 5 feet” from Const. Pompeo when the officer shot him. He understood Const.

Pompeo was standing right beside the open driver’s door of the pickup when he fired his pistol. [ 138 ] He was then asked whether, on hearing the evidence in court, his opinion with respect to that distance had changed. He replied that maybe it was a little bit more, perhaps 5 or 6 feet, but that was still too close. [ 139 ] He said his opinion that Mr.

Gillespie was trying to flee once the emergency lights were activated would not change if he assumed the average speed of the two vehicles was less than 20 kph over the whole distance of the so-called “chase.” [ 140 ] He said his opinion that the forward movement of Mr. Gillespie constituted an attack on Const. Pompeo would not change if he assumed that movement was between 3 and 5 feet, or two steps, during a time frame that would have lasted most of the 39 seconds between the time the vehicles came to a stop and the shot was fired.

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