R. v. Pompeo Date:, 2016 BCPC 133

Citation: R. v. Pompeo Date: 20160413 2016 BCPC 0133 File No: 33757-1 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DAVID A. POMPEO REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE MROZINSKI Counsel for the Crown: O.S. Kuzma, Q.C. K. Morrison K. Madsen Counsel for the Defendant: R. Hira, Q.C. S. Conroy J. Jaffer Place of Hearing: Duncan , B.C.

Dates of Hearing: Nov. 23-26, 30, Dec. 1-4, 7-10, 14-16, 2015; Feb. 1-3, 2016 Date of Judgment: April 13, 2016 [1] THE COURT: RCMP Constable David Pompeo is before court today for judgment following this, his second trial on a chargeof assault causing bodily harm, contrary to s. 268(2) of the Criminal Code. [2] The charge arises out of a non-fatal police shooting which occurred on September 18, 2009. On that day, at approximately9 p.m., Constable Pompeo and his partner, Constable Birchett, were on routine patrol in a semi-rural area outside Chemainus when theyspotted a vehicle driven by William Gillespie.

Both officers knew Mr. Gillespie was a prohibited driver. As such, they intended toinitiate a traffic stop for the purposes of enforcing the Criminal Code and the Motor Vehicle Act. [3] What ensued was a short police pursuit, followed by a confrontation between the officers, Mr. Gillespie, and Mr. Gillespie'spassenger, Dale Brewer. The confrontation ended when Constable Pompeo, believing that Mr. Gillespie was reaching for a weapon, shothim in his upper left shoulder. Mr.

Gillespie has since recovered from the shooting, though, as he testified, he still experiences pain,discomfort and mental distress brought on by the fact the bullet remains embedded in his lower spine. [4] The Crown submits that the shooting of Mr. Gillespie, though done in the course of the defendant's lawful execution of hisduty, was unreasonable. It charges that Constable Pompeo was criminally responsible for the harm suffered by Mr. Gillespie. [5] Constable Pompeo denies any criminal liability for Mr. Gillespie's injuries. Rather, he submits that he was justified in usinglethal force against Mr.

Gillespie, in self-defence. In particular, Constable Pompeo relies on the defence provided pursuant to s. 25(3) ofthe Criminal Code. [6]

Section 25 of the Code provides that everyone required to enforce the law may use as much force as necessary for that end,provided always that there are reasonable grounds for such force.

The use of lethal force is singled out for particular attention in s. 25(3),which provides that no one is authorized to use lethal force unless the person believes, on reasonable grounds, that such force isnecessary for the preservation of that person or others under that person's protection. [7] An individual relying on s. 25(3) must not only have a subjective belief that the lethal force is necessary, as the Supreme Courtof Canada held in R. v.

Nasogaluak, 2010 SCC 6 , [2010] 1 S.C.R. 206, at paragraph 34, the belief itself must be objectivelyreasonable. [8] It is conceded, and I find, that Constable Pompeo held the necessary subjective belief. The question is whether the Crown hasproven beyond a reasonable doubt that he lacked any objective grounds for the belief. [9] The Crown submits that nothing about the events on the evening of September 18, 2009, justified Constable Pompeo's decisionto shoot Mr. Gillespie.

Viewed in context, it submits, this was no more than a traffic stop involving a prohibited driver who was, at themoment of the shooting, on his knees with a gun pointed at him. Given the vulnerability of his position, the Crown submits that it wasillogical for Constable Pompeo to conclude that Mr. Gillespie was going to produce a weapon and shoot, or otherwise cause him seriousharm or death. [10] For Constable Pompeo, the shot fired into Mr.

Gillespie was the culmination of a series of acts and events, all of whichcombined to cause him to believe, at the crucial instant, that his life was at risk and that he was thus justified in using lethal force. [11] He disputes the Crown's theory that his belief came about only as a result of distorted misperceptions of events based on fearand stress, though he acknowledges feeling both.

Constable Pompeo submits that all of his experience, training, and knowledge up to themoment of the shooting, including his knowledge of the area and of the people involved, would raise in the mind of any reasonableperson standing in his shoes the same belief, that Mr. Gillespie was going to produce a weapon. [12] Although the issue in this case is one of reasonable grounds based on what is agreed was Constable Pompeo's subjective belief,credibility is still an issue.

That is because the Crown argues not only that Constable Pompeo's perception of events is unreliable, itsubmits further that Constable Pompeo's testimony was replete with classic evidence that raises doubts as to his veracity, including that itwas internally inconsistent, sometimes self-serving, exaggerated, and that it seemed rehearsed, repetitive, and formulated to provide thedefendant with a justification for shooting an unarmed man.

The Crown urged the court to disregard all of Constable Pompeo'stestimony where it was not corroborated by other reliable evidence. [13] In this prosecution, the Crown called three civilian witnesses and a number of RCMP officers whose testimony was led largelyfor the purposes of fleshing out the scene of the shooting and proving such matters as time, distance and speed. [14] Of the three civilian witnesses, the two of significance were Mr. Gillespie and Mr. Frank McGeragle, a neighbour ofMr. Gillespie's passenger, Dale Brewer. [15] I will refer to the evidence of Mr.

Gillespie from time to time in these reasons, but at this juncture I note only that in generalMr. Gillespie was not a truthful witness. It is no doubt for that reason that in its closing submissions, the Crown also invited the court todisregard all of Mr. Gillespie's testimony unless it too was corroborated. [16] I find that from time to time Mr. Gillespie gave evidence which had the ring of truth, and so I do not disregard all of hisevidence. I do, however, place little or no weight on much of his testimony. [17] Mr. McGeragle was a significant witness for the Crown.

It relies on his evidence in support of its central thesis that at thecritical moment when Mr. Gillespie was shot he was on his knees with his left hand merely fluttering in the area of his left outer jacket

pocket. The Crown submits that I should accept Mr. McGeragle's evidence, particularly where it is inconsistent with Constable Pompeo's own recollection of this critical time frame. Context [ 18 ] Ultimately, this case comes down to what occurred during an unbroken sequence of events that lasted approximately one minute, from 9:05 to 9:06 p.m., on September 18, 2009. However, the broader context is critical. As the case law instructs, in order to determine the reasonableness of Constable Pompeo's belief, the court must view events from the perspective of the officer. In Berntt v.

Vancouver (City) , 1999 BCCA 345 , at paragraphs 34 and 35 , Justice Southin wrote that in determining whether the peace officer in that case had reasonable grounds to use force, the judge should be: "a doppelgänger to the peace officer whose conduct is in issue". The judge must go with the officer, at least from the time the officer first was sent to the place where, in that case, the riot occurred.

I say "at least" because the officer's training, experience, the orders of the day given to him, are all part of what goes into the question of reasonable grounds.” [ 19 ] Moreover, I also bear in mind that it is not for this court to determine what Mr. Gillespie was intending to do. In this case, though Crown emphasized that no weapon was found on or near Mr. Gillespie and that Mr.

Gillespie was therefore unarmed, that fact has no bearing on the analysis. [ 20 ] To paraphrase the submissions reproduced in Berntt , at paragraph 30 from the judgment of Lord Diplock in Attorney General for Northern Ireland's Reference , [1977] A.C. 105 (H.L.) for the purposes of this case, I must ignore the fact that Mr. Gillespie was not found in possession of a weapon, and deal with the case as if he did potentially have the ability to produce a weapon as Constable Pompeo honestly believed to be the case. [ 21 ] Still it must be determined whether Constable Pompeo's belief was based on reasonable grounds.

Clearly, any view from Constable Pompeo's perspective will take into account those aspects of his experience, training, and knowledge that are relevant to the specific events of September 18, 2009. These factors inform, in my view, the question whether Constable Pompeo's belief that evening that Mr. Gillespie was going to draw a weapon was illogical, and therefore unreasonable. Constable Pompeo’s experience [ 22 ] At the material time, Constable Pompeo was 28 years old and a four year member of the RCMP.

Still, even by then he had received considerable training in the use of force, and was a member of the Emergency Response Team, which I will refer to as the ERT. [ 23 ] The ERT is, by all accounts, a specially skilled unit responsible for resolving high-risk calls with the least amount of risk or loss of life.

I accept that persons on the ERT must demonstrate some exceptional ability over the average officer in managing high-stress situations, and certainly Constable Pompeo was tested in this regard prior to the subject incident and was not found wanting. [ 24 ] Moreover, there is no evidence, even in regard to the particularly high-stress incident that Constable Pompeo attended to less than an hour before the subject incident, that would indicate he was unable to manage stress, or that he tended to exaggerate threats, or that he was prone to firing his service revolver carelessly or unnecessarily.

There was no evidence that Constable Pompeo had ever fired his service revolver in the course of a police incident prior to the night in question. Training [ 25 ] Constable Pompeo's training figured largely in this case. It was his evidence throughout that when he shot Mr. Gillespie, he did so in accordance with his police training. [ 26 ] Constable Pompeo called two witnesses, Sergeant Brad Fawcett of the Vancouver City Police and Staff Sergeant Leonard McCoshen, a member of the RCMP Major Crimes Unit in Edmonton, Alberta.

Both witnesses were well qualified as experts in police training and the use of force. [ 27 ] Each officer gave the opinion that Constable Pompeo's actions up to and including the shooting of Mr. Gillespie were in accordance with police training. [ 28 ] Each of the officers also provided an outline of police use of force training. They referenced the RCMP use of force training module entitled "The Incident Management Intervention Model" or the IMIM. The IMIM is at the core of RCMP officer training regarding police response to situations that threaten public and/or officer safety.

It represents the process by which officers are trained to assess, manage and respond to a given situation. [ 29 ] As police respond to a dispatch or otherwise attend a situation involving threats to public and/or officer safety, they are called upon to determine what level of intervention is necessitated by the situation. [ 30 ] The IMIM instructs police to firstly assess situational factors.

Some of these factors would be obvious to anyone, and include things such as weather, light, time of day, number of subjects, and so forth. [ 31 ] Other factors are perhaps less obvious, and include matters such as the subject's perceived abilities, knowledge of the subject gained from, for example, RCMP databases, the location of the officer relative to the subject or subjects, and so-called threat cues or acts which police have come experientially to perceive as constituting a threat.

The situational factors are varied and diverse, but the officer's assessment of those factors is critical to both officer safety and the safety of the public. [ 32 ] Beyond properly assessing the situational factors in determining which intervention option to apply, police must assess the subject's behaviour and bear in mind tactical considerations. All of these factors are not designed to be considered in a linear fashion. Rather, they must all be assessed simultaneously or near simultaneously as the situation requires.

[ 33 ] As both experts testified, a core feature of RCMP training includes an acknowledgement that police are generally called upon to react to situations. Police officers are trained to understand that a subject's ability to act will always precede and best an officer's ability to react. [ 34 ] Recognizing that officers may, in some instances, have minutes or perhaps only seconds to determine an appropriate intervention option, and bearing in mind the action versus reaction differential, police are trained to easily and quickly identify certain threat cues as part of their assessment of situational factors.

The identification of threat cues is designed and intended to cut down an officer's reaction time so as to reduce the differential in favour of police as much as possible. [ 35 ] It was not disputed in this trial that the threat cues identified by Constable Pompeo and taught in RCMP training materials are themselves empirically valid. For example, as both experts testified, it is acknowledged in policing across North America that a subject reaching to his or her waist, or otherwise secreting his or her hands, represents a threat cue.

Nor is it disputed that something known as the thousand-yard stare, or furtive glances, or the adoption of an aggressive stance, or the refusal to comply with commands, or the failure to stop when signalled to do so, all represent threat cues. [ 36 ] Certainly, as the Crown submits, all of these actions are capable of an innocent explanation. Police do not and cannot shoot everyone who put their hands in their pockets, as the Crown notes. [ 37 ] At the same time, I think it quite clear in the evidence that this does not detract from their status as threat cues.

In this instance, there is no question that Constable Pompeo was trained to perceive certain conduct on the part of any subject as a threat cue and to take that into account in assessing the situation and in determining what use of force option to apply. Constable Pompeo’s local knowledge [ 38 ] Constable Pompeo's knowledge of the area and of the people involved also has a bearing on the reasonableness of his belief. In the broader context, he testified that once he was posted to the Duncan area, he quickly learned of its thriving drug trade and associated guns and violence.

This evidence went in unchallenged, and I accept it to be an accurate assessment of Constable Pompeo's work environment at the material time. [ 39 ] I heard of a number of instances in which, prior to September 2009, Constable Pompeo engaged in traffic stops or police takedowns in which firearms and/or drugs or both were found present. Constable Pompeo related instances where he and other officers in the area were threatened with firearms or other weapons such as knives.

These were instances where police felt their lives were seriously at risk. [ 40 ] This evidence was lengthy and detailed, and I do it no justice in this brief recounting except to say I accept that the Duncan area, in which I include Chemainus, is not immune to the drug trade and its attendant perils, including violence and the presence and use of firearms and other weapons.

I accept that police and other security personnel are aware of this on a daily basis, and I accept that Constable Pompeo carried this store of knowledge with him as he went about his duties on September 18, 2009. [ 41 ] Overall, I find it not unreasonable for police, including Constable Pompeo, to consider in certain circumstances that a firearm might be present, even in the course of a traffic stop in the subject area. [ 42 ] I accept the evidence given at this trial that there is no such thing as a routine traffic stop. [ 43 ] By way of example, one of the officers called by the Crown in this trial, Constable Cathro, testified that typically when he initiates a traffic stop, a driver will pull over almost absurdly quickly.

He described drivers being so panicked once they realized they were being pulled over by police that they had stopped in the passing lane or slammed on their brakes so quickly that an accident was only narrowly avoided. [ 44 ] I accept that the expectation, at least at the outset of a traffic stop, is that most drivers will pull over immediately or very quickly. When a driver does not pull over immediately or speeds away once a traffic stop is initiated, it is unsurprising that police are trained to and do consider this act to be a threat cue.

I accept Constable Cathro's testimony that although the act of accelerating away from a traffic stop would not indicate to police that a weapon was necessarily present, the possibility of the presence of a weapon would be a consideration in those circumstances. Constable Pompeo’s knowledge of the persons involved [ 45 ] Apart from his knowledge of the area, Constable Pompeo had specific knowledge regarding Mr. Gillespie and his passenger, Dale Brewer.

Approximately a week before the subject incident, on September 10, 2009, Constable Pompeo and Constable Birchett were in Chemainus investigating the theft of a boat motor. They were travelling in an unmarked police vehicle, the same Chevy Silverado they were in on September 18th. The officers were surveilling a property known to Constable Pompeo as a "drug house and a residence associated with stolen property". [ 46 ] As the officers drove past the residence, they saw Mr. Gillespie standing outside the front door. Constable Pompeo did not at that time know who Mr. Gillespie was, but he suspected that Mr.

Gillespie saw their vehicle and that he knew they were police. He suspected their so-called cover had been blown. [ 47 ] That sighting and Constable Pompeo's observation that Mr. Gillespie knew they were police, led to a conversation between the two officers. Constable Birchett testified that, unlike his partner that day, he knew who Mr. Gillespie was and knew that he was associated with criminal activity in the area. I accept that after seeing Mr. Gillespie outside the residence in Chemainus, Constable Birchett told Constable Pompeo that Mr.

Gillespie had been charged with robbery at the Horseshoe Pub in Chemainus in the spring of 2005, and that a firearm had been involved. I accept that he advised also that Mr. Gillespie was a prohibited driver as a result of an impaired charge, and that he was growing and trafficking marihuana in his house in Chemainus.

[ 48 ] The officers ran various computer checks on Mr. Gillespie through the RCMP's database, including PRIME. Constable Pompeo testified to learning then that Mr. Gillespie was on probation for robbery with a firearm or a firearms offence. He testified that what he came to know and believe about Mr.

Gillespie that day was that he was a violent, dangerous man who had committed a violent offence of robbery and had been found in illegal possession of a firearm, that he was a heavy drug user who cultivated marihuana, and a prohibited driver associated with a brown Saturn. [ 49 ] As a brown Saturn was in the driveway of the subject residence on September 10, 2009, both Constables Pompeo and Birchett concluded that Mr. Gillespie was likely driving the vehicle. They hoped that day to catch Mr. Gillespie driving but he and his vehicle disappeared. [ 50 ] Neither officer saw Mr.

Gillespie again until the evening of September 18, 2009, when they spotted him driving along Chemainus Road toward Henry Road in the company of his passenger, Dale Brewer. Neither officer knew Dale Brewer was in Mr. Gillespie's vehicle until much later. However, as Mr. Gillespie's vehicle pulled into a driveway off of Juniper Crescent, Constable Pompeo realized he was on Dale Brewer's property. Constable Pompeo was familiar with Mr. Brewer's property having previously attended at the location on a call for service. Constable Pompeo testified to knowing Mr.

Brewer at that time as a heavy drug user, someone who was involved in property crimes, and someone who had a record for violence. He was also known by Constable Pompeo to be somewhat unstable. The Incident [ 51 ] It is against this backdrop that the events at issue in this trial which took place in the span of approximately one minute must be considered.

While there is disagreement among the parties on specific details, there is no disagreement on the following general outline of events. [ 52 ] At approximately 9 p.m., Constables Pompeo and Birchett were travelling north on Chemainus Road, having just completed a call. As they passed through the intersection, which was a roundabout, they spotted Mr. Gillespie driving toward them in the brown Saturn. They watched his vehicle turn right onto Henry Road. Constable Pompeo quickly turned his police vehicle around and proceeded west on Henry Road behind Mr. Gillespie's vehicle. [ 53 ] Mr.

Gillespie well suspected he was being followed by police as he drove along Henry Road. [ 54 ] At 9:05:02, Constable Birchett signalled to the RCMP dispatch office in Nanaimo by clicking on his radio (a signal that police witnesses referred to as “toning”). Seconds later a dispatcher responded to the tone and Constable Birchett advised that they would be making a traffic stop at Juniper Road in Chemainus.

Constable Birchett then advised dispatch that it did not look like the vehicle was going to stop. [ 55 ] Then at 9:05:27, while still on the same call, Constable Birchett reiterated the vehicle's licence plate number in response to a request for clarification from the dispatcher. Nothing further is heard from the officers until 9:06:05, when Constable Pompeo toned dispatch and subsequently indicated that a shot had been fired. [ 56 ] All agreed that though the officers engaged the sirens and lights in their police vehicle somewhere on Henry Road, in close proximity to Juniper Road, Mr.

Gillespie's vehicle did not stop until partway up Mr. Brewer's driveway. The distance his vehicle travelled after the siren was engaged is estimated to be approximately 120 or so metres. [ 57 ] Mr. Gillespie knew that police wanted to pull him over. He deliberately chose not to stop until he was in Mr. Brewer's driveway, though there was ample time and opportunity to stop well before. [ 58 ] It is also not controversial that after pulling into Mr. Brewer's driveway behind Mr. Gillespie, both Constables Pompeo and Birchett exited their vehicle quickly.

They did not advise dispatch of their precise location or their situation. [ 59 ] Both drew their service revolvers on Mr. Gillespie and Mr. Brewer immediately upon exiting their vehicle. Both issued loud commands, and some of those at least included commands to get on the ground. In Mr. Gillespie's case, Constable Pompeo issued numerous loud commands to get on the ground, to get his hands away from his pockets, and to show the officer his hands. [ 60 ] In one instance, Mr. Gillespie had his left hand in his left pocket which he removed slowly on command by Constable Birchett, if not also by Constable Pompeo.

Both Mr. Gillespie and Constable Pompeo moved toward one another before the shooting, though precisely how close is a matter of controversy. Finally, after commanding Mr. Gillespie to get his hands away from his pockets at least three times in a loud and quick succession, Constable Pompeo shot Mr. Gillespie. [ 61 ] Within seconds of the shooting, though how many seconds is controversial, he toned dispatch and seconds later verbally reported the shooting at 9:06:09. [ 62 ] To complete this brief narrative, I find that Constable Pompeo did what he could to get an ambulance and other aid to Mr.

Gillespie. [ 63 ] Constable Pompeo did not, as Mr. Gillespie testified, kick him and point a gun at his head, threatening to shoot him again while he lay bleeding on the ground. That is a complete fabrication on the part of Mr. Gillespie. Alleged perceptual distortions [ 64 ] The controversy in this case is rooted in the specific details of this broad narrative. More particularly, the Crown submits the evidence does not support Constable Pompeo's recollection of details even in the seconds before he initiated the siren in his police vehicle.

It submits his perception of events was distorted and that that distortion was caused by fear arising from a premature and unreasonable belief that Mr. Gillespie might produce a weapon.

Constable Pompeo’s recollection [ 65 ] In

summary, Constable Pompeo recalled that as he followed Mr. Gillespie west on Henry Road, Mr. Gillespie's left turn signal remained engaged for half a kilometre or more before he turned off onto Juniper Road. [ 66 ] When Mr. Gillespie made his turn, Constable Pompeo thought Mr. Gillespie's vehicle accelerated away from him. He recalled also seeing movement in Mr. Gillespie's vehicle which he described as furtive. [ 67 ] He recalled that both Mr. Gillespie and Mr. Brewer had exited their vehicle before he had time to put the police vehicle in park.

He recalled exiting his vehicle very quickly and drawing his service revolver on Mr. Gillespie. He recalled at that same time seeing Mr. Gillespie put his left hand in the left pocket of a bulky jacket and then throw something white in colour and rectangular in shape. [ 68 ] Constable Pompeo recalled Mr. Gillespie slowly but constantly advancing on him and moving towards his right, as if to outflank him. He thought Mr. Gillespie might be under the influence of drugs, and he detected a thousand-yard stare as Mr. Gillespie looked in his direction. [ 69 ] When Mr.

Gillespie put his hand in his left jacket pocket a second time, Constable Pompeo put his finger on the read position to shoot if necessary. When Mr. Gillespie removed his hand from his pocket, Constable Pompeo removed his finger from the trigger. Mr. Gillespie then got down on his knees and, in Constable Pompeo's recollection, from there onto his stomach, propped up on his elbows with his fists clenched. [ 70 ] At that time, Constable Pompeo recalled that Mr. Gillespie was rambling in a manner that reinforced his belief that Mr. Gillespie was high on drugs. [ 71 ] When Mr.

Gillespie drew his left arm back and reached into his pocket a third time instead of spreading his arms as commanded, Constable Pompeo shot him. [ 72 ] Constable Pompeo estimated the entire incident from the time he activated his siren to the time he discharged his firearm took less than 30 seconds. He estimates that he shot Mr. Gillespie within approximately ten seconds after exiting his police vehicle. The timing and sequence of events [ 73 ] I have alluded to the specific time frame at issue as taking approximately less than one minute.

That is between the time of the first toning to dispatch by Constable Birchett to the time the shot would have occurred, give or take a few seconds. [ 74 ] Both Constable Pompeo and Constable Birchett described events during this time period as occurring rapidly and in very quick succession. Neither could give any accurate estimate of time, only their sense that events were taking place in increments of seconds, as in seconds after advising dispatch of the plate number, the vehicles came to a stop, and seconds after getting out of the vehicle, Constable Pompeo shot Mr.

Gillespie, and seconds after the shooting, Constable Pompeo reported the shooting over the radio. [ 75 ] In an effort to break the events that evening down into more precise segments, the Crown attempted to establish the location of Mr. Gillespie's vehicle at the time the siren is heard in the background of Constable Birchett's dispatch and what is referred to as "recording number 4" throughout this trial.

Recording number 4 is useful in that it establishes the siren was turned on at 9:05:12, exactly ten seconds after Constable Birchett first toned dispatch at 9:05:02. [ 76 ] At 9:05:27, the officers were still in their vehicle, but only seconds away from stopping and exiting in Mr. Brewer's driveway. At 9:06:05, Constable Pompeo toned dispatch to report the shooting.

It follows, as Constable Pompeo agreed, that the shot was fired some seconds before 9:06:05, or approximately one minute, give or take, from the time Constable Birchett first toned dispatch on Henry Road. [ 77 ] Corporal Irving, a member of the Chemainus RCMP detachment having responsibility for crime reconstruction, gave evidence regarding distance and speed. He testified that the distance from the intersection at Henry and Juniper Road to the start of Mr. Brewer's driveway was 92.15 metres. He agreed in cross-examination that Mr.

Gillespie's vehicle actually travelled about 120 metres from the intersection before it stopped, all of which is predicated on Mr. Gillespie's vehicle being in mid-turn on Henry Road when the siren is heard at 9:05:12. [ 78 ] Corporal Irving also agreed that after Mr. Gillespie's vehicle turned left off Henry Road onto Juniper Road, it would have made an increasingly sharper left turn on Juniper Road, a much sharper turn into Mr.

Brewer's driveway, and then a turn to the right. [ 79 ] If, as Constable Birchett thought, the vehicle stopped in the driveway within a few seconds of his last transmission to dispatch at 9:05:27, Mr. Gillespie's vehicle would have travelled no more than a 120 metres, give or take, in approximately 18 seconds after the siren is heard. [ 80 ] Corporal Irving calculated that at that distance and time, Mr. Gillespie's vehicle would have travelled at a constant speed of no greater than 24 kilometres an hour.

He agreed that this calculation did not preclude a vehicle accelerating up to 30 or 40 kilometres an hour while turning onto Juniper Road and still stopping 18, 19 or even 20 seconds later. [ 81 ] Corporal Irving's calculation of a constant rate of speed over the time and distance travelled by Mr. Gillespie's vehicle after the siren is heard tells the court nothing about Mr. Gillespie's actual rate of speed from time to time as he drove down Juniper Road. Clearly Mr. Gillespie's vehicle would have been slowing in the turn onto Juniper Road and around the corners as he entered Mr. Brewer's driveway.

The speed in which he was travelling would have been faster and slower at various points, the rate at which he would have been able to speed up and slow down would be dependent on any number of factors. [ 82 ] At the same time, nothing about this evidence is inconsistent with the observation of both Constable Pompeo and Constable

Birchett that Mr. Gillespie's vehicle accelerated away from them at a rapid rate of speed. Moreover Mr. McGeragle heard both the siren and a vehicle approach rapidly and stopping abruptly in Mr. Brewer's driveway. [ 83 ] Both officers testified to dust being kicked up, an observation entirely consistent with Mr. McGeragle's observation of a sudden stop. [ 84 ] That things were moving rapidly in quick succession is also obvious by the fact that both officers left their vehicle without advising dispatch of their location and situation.

Each testified that there was no time to do so, and I accept this evidence as according with logic and common sense. [ 85 ] I am unable to conclude on all of this evidence that Constable Pompeo misperceived Mr. Gillespie's driving that evening. Rather, I accept that shortly after the siren was engaged, Mr. Gillespie's vehicle accelerated away from police, as both officers testified. [ 86 ] It follows that I do not accept Mr. Gillespie's testimony that his vehicle coasted from Henry Road to Mr. Brewer's driveway.

The evidence adduced by the Crown from Corporal Irving in no way corroborates this testimony, which in any event was not based on Mr. Gillespie's own memory, but rather on his recollection and understanding of the decision of my brother, the late Judge Wood, in the first trial in this matter. Moreover, it was inconsistent with the evidence given Mr. Gillespie in the first trial when he estimated he stopped no more than five seconds after he realized police were behind him. [ 87 ] In finding that Mr. Gillespie’s vehicle accelerated away from police, I acknowledge that Constable Pompeo estimated Mr.

Gillespie's vehicle accelerated up to 60 kilometres an hour as it turned onto Juniper Crescent. In this trial, Constable Pompeo agreed he may have overestimated Mr. Gillespie's speed while at the same time stating he may not have. Constable Pompeo may or may not have overestimated Mr. Gillespie's speed of acceleration, but I cannot determine that from Corporal Irving's evidence. [ 88 ] Before addressing events as they unfolded in Mr. Brewer's driveway, I am must also address the Crown's submission that the court should disbelieve Constable Pompeo's evidence that Mr.

Gillespie had his turn signal on for half a kilometre or more, that Mr. Gillespie's vehicle swerved to the wrong side of the road as it turned onto Juniper Road, and that he saw a movement in Mr. Gillespie's vehicle before it stopped in Mr. Brewer's driveway. [ 89 ] Alone, none of these observations, if found to be wrong or determinative, taken together along with other evidence, they could serve to significantly undermine Constable Pompeo's credibility. [ 90 ] In the moments leading up to Mr. Gillespie's turn onto Juniper Road, Constable Pompeo recalled seeing Mr.

Gillespie's left turn signal activated as he moved from the passenger to the passing lane on Henry Road. He thought Mr. Gillespie left his signal on for at least half a kilometre. It caused Constable Pompeo to think that Mr. Gillespie was going to pull into a driveway off Henry Road. [ 91 ] Mr. Gillespie acknowledged turning on his left indicator signal. He agreed that it was on for at least a hundred feet before his turn onto Juniper Road. While Mr. Gillespie was often untruthful in his testimony, I have no difficulty believing that he did engage his left turn signal. [ 92 ] Mr.

Gillespie well knew police were behind him for some time as he drove west on Henry Road towards Mr. Brewer's residence. As a prohibited driver, he did not want to be pulled over. I accept he would have done his best to obey traffic laws so as to avoid that. At the same time, I accept that he was nervous. He signalled that he was moving into the passing lane on Henry Road. It is not unlikely that he left his signal on at least until he reached Juniper Road.

It follows his turn signal could have been on for some time, although whether it was half a kilometre is impossible to say. [ 93 ] In his evidence in the trial of this matter, Constable Birchett could not recall noticing Mr. Gillespie's turn signal even as the car slowed just before its turn. I am convinced that Mr. Gillespie's turn signal was on at this point and though he was watching the vehicle closely, Constable Birchett did not notice it. It follows that I place little weight on Constable Birchett's testimony that he might have noticed Mr.

Gillespie's turn signal if it was on earlier for some length of time. Constable Birchett was handling the radio dispatch that evening. He may not have noticed the turn signal earlier, just as he did not notice it just before the turn. [ 94 ] On the evidence, I cannot find that Constable Pompeo lied to the court about the length of time Mr. Gillespie had his turn signal on. He may have overestimated the amount of time. He may not have. Mr.

Gillespie's turn signal was on, and I find it unsurprising that it may have been on for a longer period of time than normal. [ 95 ] The Crown says the court should also find that Constable Pompeo lied about seeing Mr. Gillespie's vehicle swerve to the left of Juniper Crescent after the turn because Constable Birchett did not see the same movement. Again, Constable Birchett agreed on cross examination that he thought he would have noticed Mr. Gillespie's vehicle if it travelled on the extreme of either side of Juniper Crescent. [ 96 ] Constable Birchett had a good view of Mr. Gillespie's vehicle.

Before it stopped, he had no recollection of seeing movement in the vehicle, as Constable Pompeo did. In this regard, it is clear and I find that there was movement in Mr. Gillespie's vehicle before it stopped and that this movement was observed by Constable Pompeo. This was confirmed by Mr. Gillespie, who recalled that Mr. Brewer was reaching around the car trying to get his bag and possibly trying to jump into the back seat before Mr. Gillespie pushed him back into the passenger seat. Mr. Gillespie's recollection was even slightly more detailed, as he recalled that Mr.

Brewer overreacted and grabbed the steering wheel. [ 97 ] The fact this movement was not seen by Constable Birchett and that he did not even see the car signal before it turned indicates that the two officers, though in the same vehicle directly behind Mr. Gillespie, did not see or recall seeing exactly the same things. [ 98 ] It does not follow from this that I must find Constable Pompeo's recollections are wrong or that they have been fabricated. There is support in the evidence for Constable Pompeo's recollection of Mr. Gillespie's turn signal and movement in his vehicle.

I am not prepared to find that he lied about Mr. Gillespie's car swerving to the left solely on the basis that Constable Birchett does not recalling seeing that movement.

The scene in Mr. Brewer’s driveway [ 99 ] Like Mr. Gillespie, Constable Pompeo also quickly turned into Mr. Brewer's driveway. He came to an abrupt stop close behind the Saturn and matters then escalated quickly and dramatically. [ 100 ] To put things into perspective, the area was dark with some ambient light, supplemented by the headlights and flashing lights emanating from Constable Pompeo's police truck. [ 101 ] Mr. McGeragle was present when the vehicles pulled into the driveway.

I accept that he was in a position to see events as they unfolded, but for the reasons I will state shortly, it is clear to me on the evidence as it was given in this trial that Mr. McGeragle's recollection of events is not entirely fulsome, nor do I accept it is an accurate depiction of what actually occurred. Mr. McGeragle's evidence constitutes a version of what occurred from his perspective. It is not the complete version, nor could it be. [ 102 ] I agree with the Crown that the incident in Mr. Brewer's driveway took longer than ten seconds from the time the vehicle stopped to the time of the shooting.

It may not have been exactly 31 seconds as the Crown contends. It might have been a few seconds less. But it was nonetheless still a very short period of time during which Mr. McGeragle would have been taken very much by surprise by the events. From his vantage point outside of the lighting provided by the police vehicle, Mr. McGeragle was observing the actions of four people, only one of whom was known to him. The area of the scene was close. The parties were in a narrow driveway surrounded by buildings and trees. [ 103 ] Mr.

McGeragle would have been taking in vast amounts of information in a span of 31 seconds or less. The events he witnessed would have been alien to him. In that time, among other things, he saw a man get shot. What he observed was shocking to him, as it would have been to anyone. What he told police afterward and in the various hearings since is his best recollection of events. [ 104 ] Though I am absolutely certain that Mr. McGeragle strained to be scrupulously honest in his testimony before this court, the fact is that his evidence suffers from frailties.

He is giving eyewitness testimony with respect to a high stress, fast-paced, unusual incident that occurred many years ago, at night, and which largely involved strangers. [ 105 ] As stated, the Crown asks the court to accept Mr. McGeragle's evidence that just before Mr. Gillespie was shot, he was on his knees with his left hand fluttering or patting the left pocket of his outer jacket. [ 106 ] The Crown also relies on Mr. McGeragle's evidence to dispute Constable Pompeo's testimony that once out of his vehicle, Mr. Gillespie was moving constantly towards him. Mr. McGeragle recalled that Mr.

Gillespie was not so much moving forward toward Constable Pompeo as shuffling from side to side in a semicircular motion. [ 107 ] The Crown points to various measurements taken at the scene by Constable Irving which it says also supports its theories that Constable Pompeo was simply wrong in perceiving that Mr. Gillespie advanced to within five or six feet of him before being shot. [ 108 ] Mr. McGeragle recalled that when the defendant and Constable Birchett got out of their vehicle, their guns were drawn and pointed at Mr. Gillespie's vehicle.

He thought he heard them yell at the occupants to get out of their vehicle. He thought that he saw Mr. Gillespie and Mr. Brewer comply almost immediately. [ 109 ] It was then that Mr. McGeragle recognized his neighbour, Mr. Brewer. He focused his attention on him. He recalled at trial that he saw Mr. Brewer get out of the vehicle and comply immediately with Constable Birchett's command to get on the ground and was as quickly handcuffed, where after Mr. McGeragle recalled that Constable Birchett watched over Mr.

Brewer from the corner of his police vehicle. [ 110 ] Much of this testimony is irreconcilable with other evidence that I do accept. Firstly, I accept that both officers would have been acting entirely contrary to their training to demand that both persons exit Mr. Gillespie's car. Their evidence that they exited their police vehicle quickly and with guns drawn because the occupants were already out of their vehicle seems far more likely. [ 111 ] Moreover, Mr. Brewer did not get out of the vehicle and comply immediately with Constable Birchett's commands.

Constable Birchett gave detailed and unchallenged evidence concerning his efforts to get Mr. Brewer to comply with his demand to stop and get on the ground. Constable Birchett testified to watching Mr. Brewer move back and forth from the vehicle with a backpack which he eventually placed on the front seat, contrary to Constable Birchett's instructions. [ 112 ] Once Mr. Brewer finally did lie on the ground, and it was some time before this was done, he was not cuffed. Rather Constable Birchett kept his gun trained on Mr. Brewer. He took his eyes off of him briefly when he looked over to Mr.

Gillespie and, seeing Mr. Gillespie's left hand in his left pocket yelled, "Bill, show us your hands". Once Mr. Gillespie slowly complied with that instruction, Constable Birchett refocused his attention on Mr. Brewer. Mr. Brewer was not cuffed until after Constable Pompeo shot Mr. Gillespie. [ 113 ] As I consider his testimony in this trial, it is apparent to me that Mr. McGeragle saw things that did not occur and conversely did not see events which did occur. There is no doubt on the evidence, for example, that Constable Birchett instructed Mr. Gillespie to show him his hands. This is confirmed by Mr.

Gillespie and Constable Pompeo. I accept this happened, but Mr. McGeragle makes no mention of this, even though at the time, by his own evidence, he was either watching Constable Birchett or Mr. Gillespie. [ 114 ] Constable Birchett denied telling anyone to get out of the car. He denied hearing Constable Pompeo give the same command. Constable Birchett was certain that both Mr. Gillespie and Mr. Brewer exited their vehicle before his. He was, for example, able to compare Mr.

Gillespie's location when he first exited his vehicle to his location when he told him to show his hands. [ 115 ] I find on the evidence that Mr. McGeragle could not have heard the officers yell, "get out of the car". He could not have seen Mr. Gillespie and Mr. Brewer exit their vehicle almost immediately on command, he could not have seen Mr. Brewer comply instantly with Constable Birchett's commands, and he could not have seen Mr. Brewer cuffed before Mr. Gillespie was shot.

[ 116 ] I do not find that Mr. McGeragle misperceived events entirely, but his testimony cannot stand as a detailed account of events in that span of approximately 31 seconds. Mr. McGeragle recalled hearing commands that I find were not uttered. He also recalled hearing commands that were uttered. Those included the commands to get on the ground and those commands were uttered to both Mr. Gillespie and Mr. Brewer. [ 117 ] I have no doubt that Mr. McGeragle heard Constable Pompeo yell at Mr. Gillespie to get on the ground several times. He clearly saw Mr.

Gillespie move around his vehicle and he saw him get on his knees. Mr. McGeragle heard someone, and it is likely that it was Constable Pompeo, yell, "Get your hands away from your pockets", in quick, loud succession, more than once before hearing the shot fired. This is consistent with Constable Pompeo's testimony, who recalled yelling, "Don't reach into your pocket" just before the firing. [ 118 ] What I must decide in light of all of this is whether I accept Mr. McGeragle's evidence that Mr.

Gillespie was on his knees, patting his left pocket with his left hand, when he was shot, to the exclusion of Constable Pompeo's far different recollection that Mr. Gillespie was lying nearly prone, propped up on his elbows, and reaching into his left pocket with his left hand when he was shot. Mr. Gillespie’s location when he was shot [ 119 ] Constable Cathro arrived at the scene within minutes of Constable Pompeo's 10-33 radio transmission at 9:06:09. He found Mr. Gillespie on the driver's side of both vehicles on his back with his head toward the police vehicle. According to Constable Cathro, Mr.

Gillespie was situated more toward the rear of his vehicle and almost between the back of the Saturn and the front of the police vehicle. [ 120 ] Constable Cathro provided some first aid to Mr. Gillespie and did a pat-down search. At some point he made a mark in the gravel with his hand or foot where Mr. Gillespie's head and feet were, and later placed cones over those marks. It is not disputed that the cones were later picked up when a tarp was placed over the scene, and then placed back down over the tarp.

Constable Cathro thought the cones were situated in a place similar to the location when he first placed them, though not exactly. [ 121 ] Mr. Gillespie recalled rolling over onto his back after he was shot. Mr. McGeragle recalls seeing Mr. Gillespie roll over onto his back after he was shot. I think it obvious, even without the benefit of forensic evidence, that Mr. Gillespie was shot when he was facing Constable Pompeo, with his head and body in a forward position so that after shot he fell forward landing on his stomach.

His head was positioned somewhere between the back of his vehicle and the front of the police truck. When Constable Cathro found him, he had rolled over from that position onto his back. It is unlikely, as Mr. Gillespie testified, that he moved forward after the shot; rather, he rolled over from side to side. [ 122 ] Mr. McGeragle testified that at the instant of the shooting, Mr. Gillespie was upright on his knees but bowed to some degree. Constable Pompeo testified that Mr.

Gillespie was down on his stomach, but propped up on his right elbow with his left arm reaching back in the direction of his left jacket pocket. [ 123 ] Constable Pompeo submits that when the diagram attached as Appendix A of Exhibit 27, showing the point of entry of the bullet, is taken into consideration, this court can find that Mr. Gillespie could not have been in the position described by Mr. McGeragle. That is because the diagram shows the bullet entering the posterior of Mr.

Gillespie's shoulder, the very part of his shoulder that would have been exposed, and directly in the line of Constable Pompeo's service revolver if Constable Pompeo's evidence is believed. [ 124 ] Constable Pompeo submits that if Mr. Gillespie was up on his knees, as Mr. McGeragle recalls, the bullet would not have entered into Mr. Gillespie's body from his upper or posterior shoulder, and travelled downward to his lower thoracic spine. [ 125 ] I think that the trajectory of a bullet in an human body is a matter that in general cannot be resolved without the aid of expert evidence.

In other words, it is not open to any trier of fact to speculate as to the path of a bullet in a human body, particularly in the spine area. Still, in certain circumstances, it would be obvious as a matter of common sense to find that a bullet travelled in a certain path that was entirely inconsistent with an account given by a witness. As an example, if the entry point of the bullet in this case were in Mr. Gillespie's back, no trier of fact could believe Constable Pompeo's evidence that he shot Mr.

Gillespie as he was advancing toward him. [ 126 ] Where there is evidence showing where a bullet entered and travelled as there is here, it is capable of some utilization by the trier of fact, but even so, I am not prepared to go as far as to find that the evidence in this case shows Mr. McGeragle must have been wrong when he recalled Mr. Gillespie on his knees. That is because Mr. McGeragle recalled that Mr. Gillespie was on his knees, but bowed, so that his head and torso were leaning somewhat forward.

From a strictly lay perspective, I cannot exclude the possibility from the medical evidence in this case that Mr. Gillespie could not have been shot in the position described by Mr. McGeragle. [ 127 ] Alternatively, I cannot exclude the possibility, given the same evidence, that Mr. Gillespie was not where Constable Pompeo said he was. Certainly the manner in which the bullet travelled from Mr.

Gillespie's posterior shoulder to his thoracic spine would seem, as a matter of first impression, to be consistent with his being down on his stomach, propped up on his right elbow, with his left arm back toward his left pocket. It is one possible

interpretation of the evidence from a purely impressionistic view. [ 128 ] While I do not discount Mr. McGeragle's evidence on this point entirely, I find that the evidence overall does not exclude the possibility that he was wrong, and that Mr. Gillespie was situated in the position described by Constable Pompeo. Mr. Gillespie’s movements at the scene [ 129 ] Mr. McGeragle recalled seeing Mr. Gillespie move about beside his vehicle in a sort of semicircular motion, rocking from side to side. He accepted that Mr.

Gillespie may have made a slight advance forward, but that he did not notice either way. [ 130 ] When he gave the command to Mr. Gillespie to show his hands, Constable Birchett recalled seeing Mr. Gillespie by the driver's side door of the Saturn in roughly the same place he was when he saw Mr. Gillespie first exit his vehicle. Seconds later, after Mr. Gillespie was shot, Constable Birchett thought that Mr. Gillespie was about five feet closer to Constable Pompeo.

[ 131 ] As I have noted, Constable Pompeo recalled that Mr. Gillespie continually advanced on him from the moment he exited the vehicle to the instant of the shooting. He estimated that at the time of the shooting, Mr. Gillespie was within five to six feet of him. [ 132 ] While I accept it as possible that Mr. McGeragle saw Mr. Gillespie moving and perhaps even rocking from side to side, I cannot determine at what point during this brief period he saw this, and where Mr.

Gillespie was when this occurred. [ 133 ] Nonetheless, I do find that Constable Birchett's testimony does not support Constable Pompeo's evidence that Mr. Gillespie constantly advanced on him. Certainly within perhaps ten seconds of the shooting at the outside, Mr. Gillespie was, by Constable Birchett's recollection, still near where he had been when he got out of his vehicle some 10 to 20 seconds earlier. He may during this time have been moving around in a semicircular motion, as Mr. McGeragle recalled. [ 134 ] What is clear from the photographs and other diagrammatic evidence at the trial is that Mr.

Gillespie moved from the driver's side door of his vehicle out to his right, and to the left of Constable Pompeo. [ 135 ] Corporal Irving's measurements at the scene demonstrate that Mr. Gillespie travelled as far as 1.78 metres, or 5.8 feet, from his driver's side door to the point where he was shot. His head came to within 3.16 metres, or 10 feet 4 inches, of the inner corner of the driver's side door of the police vehicle. [ 136 ] Even accounting for the fact, as I will touch on in more detail shortly, that Constable Pompeo was not inside the door of his police vehicle when he shot Mr.

Gillespie, it is still not possible that Mr. Gillespie was constantly advancing on Constable Pompeo, as Constable Pompeo recalled. [ 137 ] The other question is how close Mr. Gillespie came to Constable Pompeo before the shooting. Mr. McGeragle thought he had come within two arms' length of defendant. Constable Pompeo estimated Mr. Gillespie was five or six feet away from him when he fired. [ 138 ] The fact that Mr. Gillespie's head at roughly the point of the shooting was 3.16 metres or 10 feet 4 inches distant from the inner corner of the driver's door of the police vehicle would indicate that both Mr.

McGeragle and Constable Pompeo's estimates are off. [ 139 ] Still, it is clear that Mr. Gillespie was not over 10 feet away from Constable Pompeo when he was shot. Corporal Irving measured the distance from the inner corner of the driver's side door of the police vehicle to the location of the head cone as being 3.16 metres. This was, in fact, a correction from his measurement six years earlier in which he estimated the distance as being 3.50 metres. [ 140 ] Corporal Irving was not able to tell the court where exactly his measurement at the inner corner of the door began.

It was not, however, at the crook of the door, as it had been for other measurements. It was somewhere further back, and at a distance from the crook. [ 141 ] It is clear on the evidence, and I find, that Constable Pompeo was not standing in the inner corner of the door when he shot Mr. Gillespie. When he told Mr. Gillespie to show him his hands, Constable Birchett recalled being slightly ahead of his passenger's side door.

He recalled Constable Pompeo being alongside him at that time in a similar location, slightly ahead of the driver's side door. [ 142 ] Though Constable Pompeo was standing ahead of his driver's side door when he shot Mr. Gillespie, how far in front remains a question. In this trial, Constable Pompeo testified that he moved ahead some distance to close the gap between himself and Mr. Gillespie in order to avoid being outflanked and/or giving Mr.

Gillespie access to either the police vehicle or his partner, Constable Birchett. [ 143 ] As the Crown noted, this evidence was not given in the first trial, though Constable Pompeo submits it was simply not canvassed with him. [ 144 ] I place little weight on testimony given for the first time in a second trial six years after the events. I do not say that Constable Pompeo lied; rather, I accept he has in his mind recalled something on reflection as he considered the location of his shell casing.

His recollection may or may not be accurate, but coming so late, it must be given very little weight. [ 145 ] Still, Constable Pompeo's exact location in front of his driver's side door is unknown, except to say he was nowhere near the front of his vehicle. He was somewhere between the outside of his driver's side door and the front of his vehicle, but closer to the driver's side door. This fact could put Constable Pompeo some two feet or more closer to Mr.

Gillespie than the point at which the measurement inside the door was taken. [ 146 ] The other measurement that must be taken into account is the measurement from the inner door to the cone marking the position of Mr. Gillespie's head.

This was the cone which generally measures 12” by 12” that was placed firstly by Constable Cathro on the mark he scratched in the gravel with his hand or foot, and then replaced by another unknown officer after the cones were picked up in order to place a tarp over the scene. [ 147 ] I accept Constable Cathro's evidence that the head and foot cones were placed back in roughly the same position he had placed them after the tarp was set down, largely because the distance between the head and foot cone approximate Mr. Gillespie's height. However, they represent at best an approximation of where Mr.

Gillespie's head and feet were located. [ 148 ] Moreover Corporal Irving did not say from which point of each cone he measured. In the case of the head cone, depending on where the point of the measurement of the cone was, the distance between where Mr. Gillespie's head actually was and the measurement inside the driver's door could be off by as much as one foot, or 0.3 metres. [ 149 ] All of this is to say that Mr. Gillespie was closer than 3.16 metres, or 10 feet 4 inches, to Constable Pompeo when he was shot.

He could not have been as close as five feet, but he could have been as close as eight feet, and perhaps slightly less.

[ 150 ] I find that Constable Pompeo's perception that Mr. Gillespie advanced on him continuously over a period of some 10 seconds before he was shot to have been a misperception as the Crown contends. Mr. Gillespie did move forward and to his right. Of that there is no doubt. But the period in which he moved before being shot could have been no less than 25 seconds and no more than 31 seconds. [ 151 ] Mr. Gillespie may well have been moving the entire time, though not always forward. To the extent he did move forward, he advanced less than six feet.

To the extent Constable Pompeo moved forward to close the gap, the evidence does not preclude the two coming within eight feet, or slightly less, of one another. [ 152 ] Constable Pompeo is wrong about Mr. Gillespie's continuous movement forward. I agree with the Crown that Constable Pompeo's perception, whether it was caused by stress or fear, does not reflect what actually happened in this regard. I find also that Constable Pompeo overestimated Mr. Gillespie's proximity to him, and that Mr.

Gillespie could not have come as close as five or six feet to him. [ 153 ] I accept, however, based on the evidence, that Constable Pompeo could have been wrong by as little as two feet. The location of Mr. Gillespie’s hands [ 154 ] Constable Pompeo testified that he shot Mr. Gillespie once his left hand went into his left pocket for a third time because he thought Mr. Gillespie might be accessing a weapon. He was concerned that if he let Mr.

Gillespie produce a weapon, he would be at a significant disadvantage, given his training in respect of the principle of action versus reaction. [ 155 ] By the time of the shooting, Constable Pompeo was without a doubt highly stressed. Only seconds earlier, he would have experienced sheer terror as Mr. Gillespie reached into his left pocket for what Constable Pompeo says was the second time, followed nearly instantly by an overwhelming sense of relief as Mr. Gillespie removed his hand without producing a weapon.

It was this third reach in the pocket that was the catalyst for the shooting. [ 156 ] The Crown submits Mr. Gillespie reached into his left pocket on only one occasion at most. It submits this court should find Constable Pompeo did not even have a subjective belief that Mr. Gillespie reached into his left pocket for the first time as he exited his vehicle. [ 157 ] The Crown does not dispute the instance Constable Birchett saw Mr. Gillespie's hand in his left pocket. It does dispute Constable Pompeo's recollection that Mr.

Gillespie reached into his left pocket in the instant before he was shot. [ 158 ] In this trial, Mr. Gillespie testified that after he exited his vehicle, he threw his car keys away. This testimony entirely contradicts his evidence given in the first trial, but oddly it makes sense. First, Mr. Gillespie's keys fit the description of the object Constable Pompeo saw him throw, and secondly Mr. Gillespie's keys were near the front of the police vehicle, a fact which is consistent with their being thrown. Thirdly, there is good reason to suspect that Mr.

Gillespie at least wanted to exit his vehicle quickly and distance himself from the driver's seat to avoid a charge of driving while prohibited. Police arrived almost as he exited his vehicle, so all he managed to do was throw away his keys. [ 159 ] This I find is what may be logically inferred from the circumstances. However, Mr. Gillespie is right-handed. As he was parking his police truck, Constable Pompeo recalled seeing Mr.

Gillespie, who was by that time out of his vehicle, reach into his left jacket pocket with his left hand and remove something that was white and rectangular, which he then threw away. [ 160 ] If what Mr. Gillespie threw was his keys -- and this was the only item found at the scene that fits the description of what Constable Pompeo saw being thrown -- it is highly doubtful that Mr.

Gillespie would have removed his keys from the ignition and placed them in his left pocket before exiting his vehicle and from there removing them from that pocket and throwing them. [ 161 ] I do not believe that Constable Pompeo saw Mr. Gillespie reach into his pocket and extract an item which I find was his ignition keys. In saying so, I find that the evidence does not permit me to go so far as to say that Constable Pompeo lied about this. I accept he had a subjective belief that this occurred, but I find that it did not. [ 162 ] In what was a fast-paced stressful situation, Constable Pompeo saw Mr.

Gillespie at a distance get out of his vehicle and throw something aside. I cannot be satisfied beyond a reasonable doubt that he could not have perceived Mr. Gillespie to have first removed the object from his jacket. I do find, however, that objectively it could not have happened, so the defendant is mistaken in this regard. [ 163 ] I accept that Mr. Gillespie did subsequently place his left hand into his left pocket, and this was done contrary to the commands given by Constable Pompeo and before he started to get to the ground. Mr.

Gillespie removed his hand from his pocket on this occasion as he looked toward Constable Birchett, who was also instructing him to show his hands. [ 164 ] As a brief aside, I note that at that moment both Constable Birchett and Constable Pompeo suspected Mr. Gillespie was high on drugs. They noted his affect, including what they described as his giving them a thousand-yard stare. [ 165 ] Testing after the shooting showed that Mr. Gillespie tested positive for traces of marihuana, cocaine, methadone, and alcohol. Mr.

Gillespie admitted to smoking marihuana that evening as he typically did and to taking his medication, including methadone. He denied using cocaine. [ 166 ] I make no finding in this regard, except to note that the officers' perception that Mr. Gillespie was high on drugs was not, on the face of it, unreasonable. [ 167 ] Constable Pompeo had a clear recollection that as Mr. Gillespie was prone on the ground but still propped up on his elbows, he reached back and placed his left hand into his left pocket. Mr. McGeragle was equally certain he saw Mr.

Gillespie in a slightly different posture with his left hand fluttering near or patting at his left pocket.

[ 168 ] For the reasons I have already stated regarding the frailties of Mr. McGeragle's evidence, I am left with considerable doubt, not only as to what position Mr. Gillespie was in when he was shot, but also as to whether his left hand was fluttering near his pocket or whether it was in his pocket. Constable Pompeo's recollection of this critical moment is not excluded by the evidence, nor do I find, as the Crown asks, that his overall recollection of events is so distorted and incorrect that I should disbelieve his evidence on this critical point.

Summary of the evidence I accept at the scene [ 169 ] To summarize the evidence to this point, I find that as Constable Pompeo followed Mr. Gillespie on Henry Road toward the Highway, Mr. Gillespie engaged his left-turn signal for what was a longer period than usual.

I do not find it was on for half a kilometre, but I accept that it was on long enough to make an impression on Constable Pompeo. [ 170 ] I accept that even at this point, Constable Pompeo was starting to feel some stress, if for no other reason than he was about to engage in a traffic stop on a semi-rural road involving a driver whom he knew was prohibited, who had been convicted of a robbery and a firearms offence, and someone he knew to be involved in the drug trade. [ 171 ] Constable Pompeo's level of concern was heightened as he suspected, which turned out to be the case, that Mr.

Gillespie intended to pull into a driveway. As his training told him, this gave Mr. Gillespie a tactical advantage in that he was able to choose the location of the traffic stop. In accordance with his police training, Constable Pompeo wanted to stop Mr. Gillespie somewhere along Henry Road, as close to the highway as possible. [ 172 ] Mr. Gillespie’s vehicle accelerated away from police as he turned off Henry Road. He then travelled some 120 metres before stopping in Mr. Brewer's driveway though there was ample opportunity to stop well before. [ 173 ] The acceleration alarmed both officers.

I accept that for Constable Pompeo, it indicated something more than a prohibited driver. [ 174 ] Before Mr. Gillespie's vehicle came to a final stop, Constable Pompeo had observed some movement inside. This caused Constable Pompeo to suspect the occupants might be trying to hide a weapon. I accept that up to this point his experience and his training would have indicated to him and any other officer that this was a possibility. [ 175 ] Mr. Gillespie and Mr. Brewer exited their vehicle before the officers. Without any command, Mr. Gillespie threw his keys.

He did not place his hand in his left pocket, although I accept that Constable Pompeo perceived he did. [ 176 ] Rather than fleeing, Mr. Gillespie and Mr. Brewer turned and faced the officers. Thereafter, each officer focused on the person in front of them. Their guns were drawn and trained on the two. [ 177 ] Constable Pompeo realized that they were located in Mr. Brewer's driveway. He knew Mr. Brewer as someone who had a record for property crimes, drugs, and violence. Constable Pompeo had previously attended a call at Mr. Brewer's residence and there saw evidence that reinforced his view that Mr.

Brewer was a drug user. [ 178 ] It took some time and some instruction before Mr. Brewer complied with Constable Birchett's commands. Ultimately he lay down on the ground as instructed. Shortly after, Constable Birchett refocused onto Mr. Gillespie, who was standing by the driver's side of his vehicle with his left hand in his left pocket. [ 179 ] Mr. Gillespie had earlier that day and evening smoked marihuana and consumed alcohol. He had taken his methadone and other prescription drugs. It appeared to both officers that Mr. Gillespie was high on drugs. [ 180 ] Mr.

Gillespie was unresponsive throughout the incident, at times staring blankly through the officers, at times mumbling in a way that reinforced Constable Pompeo's view that he was high. [ 181 ] The defendant and Constable Birchett exited their vehicle sometime around 9:05:29 or 9:05:30. The entire incident from the exit in the driveway to the shot took less than 31 seconds. It would not have been much less. [ 182 ] In that 31 or so seconds, Mr. Gillespie advanced approximately five feet towards Constable Pompeo. His advance was not constant. Constable Pompeo, too, advanced towards Mr.

Gillespie, but the two would not have come much closer than eight feet of one another. I accept that Mr. Gillespie moved around on scene and to his right, in a manner that Constable Pompeo perceived as a sort of flanking action. [ 183 ] Contrary to instructions, as Constable Pompeo was commanding him to get on the ground, Mr. Gillespie placed his left hand in his pocket, and took it out only after looking in Constable Birchett's direction. In that instance, Constable Pompeo thought Mr. Gillespie might produce a weapon. Though he was prepared to, he did not shoot Mr.

Gillespie, who was looking at Constable Birchett when he moved his hand from his left pocket. [ 184 ] Shortly after this, as instructed by Constable Pompeo, Mr. Gillespie lowered himself to the ground. He was, without a doubt, at least on his knees when he was shot. I am, however, unable to find on the evidence that he was not lowered further such that he was nearly on his stomach, resting on his elbows and leaning slightly over to his right, with his left hand stretched back toward or even in his left pocket when he was shot. [ 185 ] Whatever position he was in, at the instance of the shooting, Mr.

Gillespie's hand was in or near his left pocket, though he had been told many times by police to show his hands. The Expert’s opinions

[ 186 ] I have referred earlier to the opinions given by both Staff Sergeant McCoshen and Sergeant Fawcett that Constable Pompeo's actions that evening, including the shooting of Mr. Gillespie, were entirely in accord with his training, and that was the case whether Mr. Gillespie had his hand in his left pocket before being shot, or whether it was fluttering near the left pocket. [ 187 ] Those opinions were based on a hypothetical which has not been entirely proven in this trial, though the difference I find is not significant.

For the most part, the facts on which the hypothetical is based were proven, but for my findings that Mr. Gillespie did not reach into his pocket just after he exited his vehicle, and that he did not constantly advance on Constable Pompeo over the 31 second or so period of time that elapsed from his leaving his vehicle to his being shot. [ 188 ] In regard to those findings, Crown did put to both experts a scenario in which Mr.

Gillespie did not put his hands in his pocket that first time and did not advance toward Constable Pompeo at a constant rate. [ 189 ] Both Staff Sergeant McCoshan and Sergeant Fawcett testified that these facts would have altered the threat perception only slightly, if at all. Each, for example, were concerned that rather than showing his hands, Mr. Gillespie was throwing an object. Both saw this as

an act of non-compliance and potentially threatening behaviour. [ 190 ] Sergeant Fawcett was asked by the Crown whether his opinion would change if, rather than advancing on Constable Pompeo, Mr. Gillespie was simply shuffling from side to side before getting down on his knees, and from there simply patting at his left pocket. Sergeant Fawcett's answer was that it would not. At that point, the belief that Mr. Gillespie would produce a weapon had been formed and neither expert would have been prepared, nor would they have instructed other officers to wait and see if a weapon was actually produced.

Conclusion [ 191 ] The overwhelming evidence in this trial is that Constable Pompeo was acting in accordance with his training that evening, even as he shot Mr. Gillespie. [ 192 ] In closing, the Crown submitted that, even so, it did not follow that Constable Pompeo acted lawfully. [ 193 ] Without deciding the point, I find that the fact Constable Pompeo was acting in accordance with his training does have some bearing on the final analysis.

Certainly it provides some support for the reasonableness of his grounds for belief. [ 194 ] Given all of my findings, I am not convinced on the evidence beyond a reasonable doubt that at the time Constable Pompeo formed the belief Mr. Gillespie would produce a weapon a reasonable person standing in his shoes, with his knowledge and his training, would have waited to see if in fact a weapon was produced. The evidence that I accept in this trial suggests that a person standing in the officer's shoes would not. [ 195 ] The more difficult question is whether the belief Mr.

Gillespie was going to produce a weapon is itself based on reasonable grounds. As I noted at the outset of these reasons, the Crown takes issue with the reasonableness of this belief in the context of a traffic stop where the subject is on his knees with a gun pointed at him. [ 196 ] Still, as I have found, I cannot be satisfied that Mr. Gillespie was not on the ground, propped up on his elbows, and reaching back into his left pocket when he was shot. [ 197 ] At the time of the shooting, I am satisfied that Constable Pompeo's belief that Mr. Gillespie would produce a weapon was based on his knowledge of Mr.

Gillespie, particularly Mr. Gillespie's past conviction for violent crime involving a firearm, and Mr. Gillespie's association with the drug trade. [ 198 ] Constable Pompeo knew he was in Mr. Brewer's driveway, another person associated with the drug world. Constable Pompeo knew from professional experience of the association of drugs and firearms in the area. He was trained to anticipate the possibility a gun might be in the vehicle, based on his knowledge of Mr. Gillespie. His training told him it was more likely as Mr. Gillespie's vehicle sped away and as he watched furtive movement in the vehicle. [ 199 ] Mr.

Gillespie's actions, and those of Mr. Brewer at the scene, were highly unusual and threatening. Mr. Gillespie demonstrated non-compliance, and more significantly, deliberately placed his hands in or near his waist area. Constable Pompeo was trained to perceive each of these factors as constituting a threat cue. [ 200 ] Again, bearing these facts in mind, and giving my findings overall in this trial, I find that I cannot be satisfied beyond a reasonable doubt that at the instant he shot Mr. Gillespie, Constable Pompeo's subjective belief that Mr.

Gillespie was going to produce a weapon and cause him serious harm or death was not based on reasonable grounds. [ 201 ] There is, I find, in this trial considerable evidence to support the view that a person standing in Constable Pompeo's shoes, and having his training and knowledge, would have formed a similar belief. [ 202 ] For these reasons, Constable Pompeo, I acquit you of the charge of aggravated assault. (JUDGMENT CONCLUDED)