2021 QCCQ 620, 2021 QCCQ 620

Translated from the original French R. c. Gilbert 2021 QCCQ 620 WARNING This file is protected by an order banning the publication or broadcast, in any way whatsoever, of any information that could identify the members of the Special Weapons and Tactics team (SWAT team) of the Service de police de la Ville de Montréal (SPVM), save for Mr. Christian Gilbert.

This file is also protected pursuant to an order banning the publication or broadcast, in any way whatsoever, of the following: 1) information concerning the number of police officers per position on the perimeter controlled by the SWAT team; 2) information concerning the number of police officers that must enter to control each room inside the search premises; 3) information concerning the position of the SWAT team members near the door in the moments before the battering ram is used and those inside the searched premises; 4) information concerning the various makes and models of stun grenades used by the SWAT team; 5) information concerning the body armour worn by the SWAT team members; 6) information concerning the make and model, caliber and/or type of munition for handguns or long guns used by the SWAT team members, except for information relating to the ARWEN 37 and its munition; 7) information concerning the holding and safety systems of the firearms used by the SWAT team; 8) information concerning the vehicles at the SWAT team’s disposal, that is, their make, model and colour.

Section 486.6 of the Criminal Code states: 486.6

(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on

summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. R. c. Gilbert 2021 QCCQ 620 JP 2213 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL “Criminal and Penal Division” No.: 500-01-154592-171 DATE: February 4, 2021 PRESIDING: THE HONOURABLE YVAN POULIN, J.C.Q. HER MAJESTY THE QUEEN Prosecutrix v. Christian GILBERT

Accused JUDGMENT [ 1 ] Mr. Gilbert was tried for the manslaughter of Mr. Bony Jean-Pierre, who lost his life after receiving injuries to the head caused by a plastic projectile shot during a raid on a building in Montreal North. [ 2 ] Gilbert is a police officer and a member of the Special Weapons and Tactics team (SWAT team) of the Service de police de la ville de Montréal (SPVM).

On March 31, 2016, he was part of a team whose mission it was to execute a raid on an apartment used to sell drugs by individuals associated with a street gang. [ 3 ] During the operation, Gilbert’s task was to watch the front of the building to stop anyone who might attempt to flee.

He was armed with an intermediate impact projectile weapon (IIPW) that shoots plastic bullets (also called “kinetic impact projectiles” (KIPs) and “[redacted]”. [redacted] police officers from the SWAT team were watching the back of the building and [redacted] were responsible for entering the apartment being searched by breaking down the door with a battering ram and deploying a distraction device. [ 4 ] The facts leading up to Jean-Pierre’s death unfolded in the moments following the hard entry.

Jean-Pierre tried to flee through the window in the room at the front of the building as soon as the ram hit the door. The evidence reveals that he ran to the window, yanked the curtains aside and threw open both windows completely in one swift movement. [ 5 ] Seeing this behaviour, Gilbert fired a warning shot into the exterior window frame to dissuade Jean-Pierre from pursuing his escape. The plastic bullet hit the intended target but did not dissuade Jean-Pierre from his intention. [ 6 ] He then climbed onto the windowsill, crouched on the ledge, and prepared to jump.

When Gilbert saw this, he decided to shoot a second plastic bullet, aiming for Jean-Pierre’s hip. It was this bullet that hit Jean-Pierre in the head and caused his death a few days later. [ 7 ] At trial, Gilbert testified that Jean-Pierre jumped just as he pulled the trigger of his intermediate weapon, aiming for his hip. He is devastated by Jean-Pierre’s death, which he considers tragic.

He explained that he was aiming specifically at the hip, which is considered a “green zone” according to the [ translation ] National Use of Force Framework. [ 8 ] Taking into account all the circumstances he knew, including the fact that the operation was targeting the [ translation ] “new base for the Reds-affiliated gang” and his concern that violence and firearms might come into play, he deemed it necessary to use his intermediate weapon and aim for the hip.

He testified that he considered Jean-Pierre’s flight a significant danger and he wanted to force him back into the apartment so he could be subdued. [ 9 ] It is in this context that the Court must determine whether it has been proved beyond a reasonable doubt that Gilbert committed manslaughter. At trial, the prosecution called 12 police officers who took

part in the operation and in analyzing the scene, a ballistics expert, a forensic pathologist, and 2 witnesses who were in the apartment when the raid unfolded to testify. [ 10 ] For the defence, Gilbert testified and explained the circumstances that led to the fatal shot being fired. An expert in biomechanics closely analyzed Jean-Pierre’s movement and Gilbert’s shot. An expert in the use of force testified about the [ translation ] National Use of Force Framework and the training provided for high-risk police operations.

A police officer with the SWAT team assigned to the back of the building described how the police operation unfolded from that position. [ 11 ] The Crown argues that Gilbert incurred his criminal responsibility by using excessive force against Jean-Pierre. In the Crown’s view, Gilbert was not justified in using the intermediate weapon to prevent Jean-Pierre from fleeing in a context where the latter was not actually armed.

The prosecution maintains that Gilbert should have resorted to other options. [ 12 ] The defence argues that in the circumstances of this case, Gilbert’s use of the intermediate weapon was justified to prevent Jean-Pierre from fleeing. In light of all the circumstances known by Gilbert, the defence maintains that his concerns about violence and serious consequences were very real and justified using the intermediate weapon to put an end to Jean-Pierre’s active resistance.

The defence states that Gilbert was actually aiming for the hip and that it was Jean-Pierre’s sudden movement that resulted in him being accidentally hit in the head.

The defence argues that Gilbert’s testimony is corroborated by the expert report on biomechanics. [ 13 ] For the purpose of this judgment, the Court will first examine the context that led to the raid, how the operation was planned, how it unfolded, why the SWAT team was called, the circumstances in which the shot that hit Jean-Pierre was fired, and the testimony of the experts heard at trial. [ 14 ] The Court will then address the legal principles and rules surrounding the use of force by police officers.

Last, the Court will determine whether it has been proved beyond a reasonable doubt that Gilbert committed manslaughter by using unjustified force against Jean-Pierre. 1. The police investigation [ 15 ] The police investigation that concerns us began after information was received from a police informer that apartment no. 3 at

6330 Arthur-Chevrier in Montreal North was being used to sell drugs. The information, received from a trusted informer on March 18, 2016, was that a man by the name of “Juice” was selling marijuana and crack there. The informer added the telephone number used by the seller and provided a physical description of him. He identified him from a photo of a man named Gregory Daquin. [ 16 ] Shortly after receiving the information, the officers of the SPVM’s East-end street gangs squad checked some of the facts in the police data banks.

They established a connection between the apartment in question and a man named Ralph Mario Félicin, and confirmed that Gregory Daquin, who had a drug case pending against him, used the alias “Juice”. [ 17 ] On March 24, 2016, the officers conducted a first surveillance operation at the address in question. They observed about 10 individuals coming and going through the back door of apartment 3.

They also saw hand-to-hand exchanges that corresponded, in their view, to [ translation ] “drug transactions”. [ 18 ] On March 29, 2016, a second surveillance operation confirmed the comings and goings of 13 individuals through the back door and the presence of Gregory Daquin. At the investigators’ request, an undercover officer went to apartment no. 3 through the building’s back door to buy drugs. He spoke with Gregory Daquin and asked him for two [ translation ] “units”. He paid an unknown individual who was in the kitchen.

A man identified as Dany Villanueva gave him two bags containing about two grams of marijuana. [ 19 ] The surveillance and subsequent verifications confirmed the presence of Villanueva in apartment no. 3 and the fact that he used a Mazda 3 vehicle to get around. The data banks confirmed that his driver’s licence was registered at his parents’ address in Repentigny. [ 20 ] On March 30, 2016, a third surveillance operation revealed that Villanueva left his parents’ residence and went to Montreal North in the area of Pascal and Lapierre streets.

Police officers observed a short meeting that they characterized as a [ translation ] “drug transactions” then confirmed that he went to apartment no. 3 through the back. Over a relatively short period, the surveillance observed about 20 individuals coming and going through the back door. Villanueva left the premises mid-afternoon and returned to his parents’ residence. [ 21 ] Early that evening, at the investigators’ request, an undercover officer went to apartment no. 3, again through the back door, to buy more drugs.

He was greeted by two men identified as Pierre-André Marcelin and Ralph Mario Félicin who asked him [ translation ] “who he was”, [ translation ] “who sent him”, and [ translation ] “what he wanted”.

After they talked, Ralph Mario Félicin sold him two grams of marijuana for $20. [ 22 ] On March 31, 2016, Sergeant-Detective Erik Lavallée obtained three search warrants for 6330 Arthur-Chevrier, apartment no. 3, in Montreal North, Dany Villanueva’s residence in Repentigny, and Villanueva’s vehicle. [ 23 ] These warrants were issued by a presiding justice of the peace pursuant to s. 11 of the Controlled Drugs and Substances Act based on information received from the informer, observations made during surveillance, and purchases made by the undercover officers. 2.

Calling in the SWAT team [ 24 ] As the investigation unfolded, S-D Lavallée and his team conducted a risk-assessment to determine how to execute an eventual search of apartment no. 3. To this end, they thoroughly checked the investigation’s subjects and the premises concerned. [ 25 ] In accordance with the SPVM procedure in effect, a detailed operation plan was prepared and the risk assessment form was completed. Lieutenant-Detective Pierre Morin developed the operation plan, which was approved by Commanding Officer Guy Bianchi.

The risk assessment was written by S-D Maheu and approved by L-D Morin and CO Bianchi. [ 26 ] At trial, the investigators were examined on the elements that justified calling in the SWAT team to perform a hard entry.

Their testimony, the contents of the operation plan, and the risk assessment form reveal that they were justified in resorting to this type of search with respect to apartment no. 3. [ 27 ] First, the fact that the premises were used as a base to sell drugs, that it was frequented by Reds-affiliated gang members, and that it was on a [ translation ] “hot” block where violent events occurred were well-documented. [ 28 ] Second, the police checks concerning the building revealed a recent attempt to destroy evidence that had taken place in apartment no. 3, and movement from one apartment to another inside the building. [ 29 ] Moreover, the officers knew that individuals associated with the Reds were considered violent, as was established by the testimony heard at trial.

The connection between some of the subjects identified in the investigation and prior incidents of violence was well documented. The expected presence of several individuals during the search increased the risk from a safety standpoint. [ 30 ] In the Court’s view, the cumulative effect of all these factors made the concerns of violence reasonable and justified calling in the SWAT team to carry out a hard entry for safety reasons and to prevent the destruction of evidence.

In the context of this case, this way of proceeding was essential both for the safety of officers and citizens and to avoid the destruction of evidence. [ 31 ] The file reveals that L-D Morin took steps as early as March 29, 2016, to ensure that the SWAT team would be available for a search on March 31, 2016. According to the evidence, on March 30, 2016, the internal risk assessment form and the operation plan were finalized and approved in accordance with SPVM policy.

These documents were then sent to the SWAT team, which continued to prepare the operation and put together the team that would be tasked with going into the premises. 3. Planning the operation [ 32 ] On March 31, 2016, surveillance was set up to monitor apartment no. 3 and the movements of Dany Villanueva. The search warrants were issued in the early morning and it was decided that the raids would unfold simultaneously, in the afternoon.

[ 33 ] Pursuant to instructions received from the SPVM heads, the investigators coordinated the operation to ensure that Villanueva would not be in Montreal North when they carried out the raid. It appears that the purpose of this decision was to reduce the risk of excesses. [ 34 ] The SWAT team members were first briefed around 2:30 p.m. in the rooms reserved for them.

This briefing lasted 15 to 20 minutes and was led by Sgt. [redacted] who stated, among other things: ➢ that the SWAT team was to assist the East-end street gang squad to execute a raid; ➢ that the premises being raided were the new base for the Reds-affiliated gang in Montreal North; ➢ That it was a building with eight apartments; ➢ That movement to and from apartment no. 3 was through the back door; ➢ that one of the subjects under investigation was Dany Villanueva; and ➢ that Villanueva should not be on the premises during the raid. [ 35 ] During this meeting, Gilbert and other members of the SWAT team consulted the risk assessment form at their disposal and photographs of the premises.

At the end of the briefing, the operation plan was well established and the roles of the various members of the SWAT team were precisely identified: ➢ Gilbert and [redacted] were responsible for covering the front of the building and agreed that Gilbert would be armed with the intermediate weapon whereas [redacted]; ➢ [redacted] members of the SWAT team were to cover the back of the building, [redacted] of them would be armed with intermediate weapons and [redacted]; ➢ And [redacted] members of the SWAT team, including Sgt. [redacted], were responsible for storming the apartment to secure the premises. [ 36 ] During this briefing, Sgt. [redacted] confirmed that they would enter through the front of the building, using a ram, and a [redacted] distraction device. [ 37 ] A second preparatory briefing was held around 3:30 p.m. behind a business located near the search premises.

In addition to the members of the SWAT team, investigators from the East-end gang squad, members of the intervention squad and patrol officers were also present. It was then a matter of coordinating the operation and defining everyone’s role. [ 38 ] According to the evidence, S-D Lavallée, L-D Morin, and Sgt. [redacted] spoke in turns. First, S-D Lavallée confirmed that the search warrants had been issued and summarized the police investigation in broad strokes.

He repeated many of the details that had been addressed by Sgt. [redacted] during the 2:30 p.m. briefing and related some additional information. [ 39 ] In particular, he indicated that the search location was the new base for the Reds-affiliated gang and that the comings and goings were through the back door. He also said that undercover officers had bought drugs and that recent surveillance confirmed the presence of several individuals inside apartment no. 3. [ 40 ] L-D Morin then took over, reminding the officers present of some safety instructions.

In his remarks, he specifically referred to the possibility that the subjects might be armed and told them to be prudent. [ 41 ] During this briefing, Sgt. [redacted] gave detailed instructions to the patrol officers, the investigators, and the IS officers concerning their respective roles and positions.

He added that once the operation was under way, the IS officers would have to ensure the safety of the SWAT team members and place their vehicles in plain view for the purpose of police identification. [ 42 ] He asked the investigators to assume certain specific tasks relating to access to the building and securing the upper floors.

He entrusted the patrol officers with the responsibility of blocking the intersections, ensuring a perimeter and visibility, and covering any possible flights. [ 43 ] It is noteworthy that it was during this briefing that Sgt. [redacted] agreed to deploy a [redacted] distraction device behind the building and assigned this task to one of the SWAT team members. 4. Conduct of the raid [ 44 ] The SWAT team members began approaching the search location at around 4 p.m.

They carried out the pre-established plan but had to interrupt it, once when they were told that some subjects were behind the building and a second time when a woman and child were crossing the alleyway. [ 45 ] Once the investigators gave the green light, the SWAT team members drove down Arthur-Chevrier Street. They got out of their vehicles and moved toward the building.

Those tasked with going into the search location went through the main door and positioned themselves with the ram in front of the door to apartment no. 3, which is on the first floor and to the left. [ 46 ] At the same time, Gilbert and [redacted] positioned themselves in front of the building, in the street, behind a parked vehicle. From their position, they could see the front of the building and were watching the door to the balcony of apartment no. 3 and the front room window.

Simultaneously, the [redacted] officers tasked with watching the back of the building took up position and were observing the rear exit to apartment no. 3.

[ 47 ] The events that followed unfolded extremely quickly. The ram was used around 4:11 p.m. and the door gave way on the first hit. Officers yelled “Police!” and the [redacted] distraction device was deployed inside the apartment. The officers then went in yelling “Police!” and stormed the premises according to the pre-established plan. 4.1. The kitchen [ 48 ] Some of the officers went to the back of the apartment to subdue the individuals in the kitchen. They yelled “Police!” as they went down the hallway and quickly arrived at the entrance to the kitchen.

They noted that several of the subjects were moving toward the back door to leave the apartment but suddenly reversed course toward them. [ 49 ] On several occasions, the officers issued orders to show their hands and lay down on the ground. The number of subjects present made the exercise difficult and some of them did not immediately cooperate. One of them came much too close to one officer, who had to push him back and guide him to the ground.

One officer activated the Taser and the subjects then cooperated without it needing to be used. [ 50 ] The evidence reveals that it was the effect of the [redacted] distraction device deployed on the balcony that slowed the subjects’ flight through the back door. In short, one of the SWAT team members covering the rear of the building also fired a plastic bullet into the wall adjacent to the outside door with his intermediate weapon.

This shot happened when one of the subjects was getting ready to flee through the back door. [ 51 ] All the subjects in the kitchen ultimately complied with the orders and were in turn searched and subdued. One of them testified at trial and explained how he perceived the events to have unfolded. Jeff Joubens Theus explained that he was sitting at the poker table when the SWAT team made their hard entry and he quickly understood that it was a police raid. [ 52 ] He stated that he heard “Police!” as well as the deafening sound of what he called “flash bangs”.

He confirmed that several of the subjects, himself included, rushed toward the back door after hearing the ram but that they were stopped in their tracks by the bangs. With respect to the apartment’s purpose, he stated that he thought it was a place [ translation ] “for friends” to meet and play poker. 4.2. The front room [ 53 ] The evidence reveals that Jean-Pierre was in the front room when the ram hit. The door to the room was closed and he was alone with Berthony Tessono, talking.

In his testimony at trial, Tessono recounted that he was in that room with Jean-Pierre to discuss a new publication on his Facebook account. They had closed the door so they could talk in private. [ 54 ] Tessono confirmed that he heard a deafening noise that made him jump and saw a [ translation ] “big flash” of light under the door. He explained that Jean-Pierre immediately rushed to the window, opened it, climbed onto the sill, looked both ways, and jumped.

He said that this sequence of events unfolded extremely quickly. [ 55 ] Tessono recounted that at almost the same moment, he also went toward the window but lay down on the ground behind the bed and stayed there without moving. Believing that it was the police, he stayed in that position until he was found and arrested. [ 56 ] The evidence reveals that the SWAT team member assigned to this room burst in at the precise moment Jean-Pierre was crouched on the windowsill, ready to jump.

In his testimony at trial, the officer explained that he yelled “Police!” when he broke down the door and immediately noticed Jean-Pierre at the window. He yelled [ translation ] “Police! Show me your hands” but Jean-Pierre looked at him, immediately turned around and [ translation ] “started to launch himself” outside. [ 57 ] The officer tried to step over the bed to get to him but it was already too late. Once at the window, he looked down and saw Jean-Pierre laying on the ground in front of the building.

He also saw [redacted] of the SWAT team, who were still positioned in the street. [ 58 ] That was when Sgt. [redacted] joined him in the room and found Tessono hiding between the wall and the bed. Tessono was subdued and handcuffed without resisting. 5. The fatal shot [ 59 ] Approximately five seconds went by between the ram hitting the door and Jean-Pierre jumping out the window. [ 60 ] According to the evidence, in the moments before the hard entry, Gilbert and [redacted] were positioned in front of the building behind a parked vehicle.

As previously stated, Gilbert was armed with a [redacted] intermediate weapon. [ 61 ] While waiting for the battering ram to be used, [redacted] were able to see their colleagues in the staircase. Their view of the building was unobstructed and they paid particular attention to the first-floor window and patio-door where apartment no. 3 was located. They were responsible for keeping the subjects inside the apartment being raided. [ 62 ] [redacted] testified that they heard the battering ram hit, the shouts of their colleagues (“Police!”) and the noise of the distraction device.

In the following moment, they observed Jean-Pierre fling the curtains aside and quickly open both windows wide. Officer [redacted] noted that Jean-Pierre looked directly at them when he flung aside the curtain and they yelled “Police!” as Jean-Pierre opened the window. [ 63 ] Convinced that Jean-Pierre was about to flee, Gilbert fired a plastic bullet at the window frame to dissuade him. This warning shot hit the intended target dead on, but did not have the desired effect. The officers noted that Jean-Pierre continued moving, climbing onto the windowsill, crouching, ready to jump.

He then exposed the left side of his body and only one of his hands was visible. [ 64 ] Seeing this, Gilbert aimed for Jean-Pierre’s hip and fired a second plastic bullet. He wanted to hit him in this “green zone” to

prevent him from fleeing. According to Gilbert, Jean-Pierre jumped to the ground at the very moment he shot at his hip. It was in these circumstances that the plastic bullet hit him in the head. [ 65 ] In the following moments, Gilbert and [redacted] approached Jean-Pierre to assist him. His eyes were closed. He appeared unconscious and he had very apparent bruising on the left temple.

They immediately called Urgences-Santé [ translation ] (“U.S. stat”) and placed Jean-Pierre in a lateral safety position to facilitate his breathing. [ 66 ] Officer [redacted] opened Jean-Pierre’s vest to help him breathe and performed a pat-down search that was negative for weapons. For his part, Gilbert supported Jean-Pierre’s head and spoke to him to try to reassure him. He gave him first aid and remained by his side until he was taken away by the ambulance attendants. [ 67 ] After the ambulance attendants took charge of Jean-Pierre, Officer [redacted] approached Gilbert to ask him how he was doing.

Gilbert answered [ translation ] “I’m okay...but when you want to hit someone in the hip and you hit them in the head, it’s not a good day”. [ 68 ] When examined at trial as to the tragic consequences of his shot, Gilbert stated with great emotion that it was a disaster. He stated that he never wanted that result and said that he was aiming for the hip and was certain he would hit his target: [ translation ] You know, I have to guarantee my shot, Your Honour.

Like I said before, had I had any doubt about hitting my target, I would never have taken the shot. [ 69 ] Analyzing all the known circumstances, Gilbert deemed that he had a window of opportunity to force Jean-Pierre back inside the apartment: [ translation ] At that moment, Your Honour, I had to act, time was of the essence. I had my window of opportunity and I took this one chance I had to use the intermediate weapon on a green zone. [ 70 ] He believed that the possible danger arising from Jean-Pierre’s flight was serious and deemed that he had no alternative other than to take this shot at the hip. 6.

Gilbert’s professional career [ 71 ] In his testimony at trial, Gilbert described his career path and experience as a police officer. Without repeating every element in detail, the Court points out that he began his career in 1992 as a patrol officer with the SPVM following a brief stint with a municipal police force. [ 72 ] In 1999, he was selected to become a member of the SWAT team after completing all of the steps of a particularly challenging selection process to evaluate the physical and psychological capabilities of the candidates, including their decision-making skills.

At the end of the selection process, he finished first in a group that initially included over 100 candidates. [ 73 ] Gilbert then received the mandatory training given to new SWAT team members and officially joined this elite team in 2000. He requalified every year, successfully completing the requalification tests all SWAT team members must take. He also took

part in the ongoing training imposed by the SWAT team and became an instructor on the use of certain weapons. [ 74 ] As of his first year with the SWAT team, Gilbert trained as a sharpshooter and received these credentials due to his specific skills. On a few occasions, he took

part in international competitions pitting sharpshooters from over 20 countries against each other, and placed amongst the best. [ 75 ] During his career, he became an instructor to train new sharpshooters within the SWAT team and became a member of highly specialized teams assigned to operations in high altitudes, underwater operations, and those involving explosives. [ 76 ] During his 16 years with the SWAT team, Gilbert took

part in many high-risk armed interventions. On dozens of occasions, he was involved in operations targeting the Reds-affiliated gang in Montreal North during which the subjects were often armed. [ 77 ] He knew that this street gang was involved in violent crimes such as robbery, murders or attempted murders, drug trafficking, procuring, and home invasions. In this case, Gilbert and his colleagues on the SWAT team had received information that the search location was the new base for this criminal gang. [ 78 ] Over the course of his career, Gilbert has received many honours in connection with his job.

Without repeating them all, it is worth pointing out that in 2000, he received the Governor General’s Medal of Bravery for saving a woman trapped in a burning apartment building.

Then in 2013, he was awarded the Police Exemplary Service Medal in recognition of his 20 years of exemplary conduct in the service of public order in Canada. [ 79 ] Throughout his career, Gilbert received training on the principles and parameters governing the use of force by police officers, including the [ translation ] National Use of Force Framework. [ 80 ] When examined on this subject at trial, he properly explained the parameters and principles governing what is the “necessary” use of force in light of the circumstances of a given case, the behaviour of the subject of an intervention, the particular perception and tactical considerations of a situation, and the various options available to an officer in a given situation. [ 81 ] It appears from Gilbert’s testimony that he properly understood the scope and limits of the use of force by police officers, including the principles of necessity, proportionality, and reasonableness, which are at the heart of every intervention where the use of

force might be necessary. 7. The intermediate impact projectile weapon (IIPW) [ 82 ] The intermediate weapon used in this case shoots KIPs (plastic bullets) to temporarily incapacitate a subject. Where appropriate, this weapon may be used in response to a behaviour, or situation, where the use of other intermediate weapons or other options is not viable. [ 83 ] The IIPW has been available to SWAT team members for several years. SWAT team members are trained to use it and regularly practice handling it and shooting bullets. They must periodically requalify to continue using it .

This weapon is extremely precise and is equipped with a sight. It has been established that the weapon used by Gilbert was well maintained and in perfect condition to fire. [ 84 ] According to the evidence, the IIPW is not likely to cause an individual’s death when used in a “green zone” of the human body, like the hip. Although there may be some bruising, hematomas, or lacerations, the trauma from a bullet to a “green zone” is considered low and not lethal. [1] That is not the case when the bullet hits a “yellow zone” or a “red zone”.

In those situations, the bullet may cause moderate or high-level trauma, including death. [2] 8. The expert reports 8.1. The ballistics report [ 85 ] A few weeks after the events of this case, ballistics expert Manuel Tousignant went to the scene to take measurements.

It appears from his testimony that Gilbert was about 12 meters from Jean-Pierre when he fired the warning shot and then the fatal shot. [ 86 ] Tousignant’s expert report reveals that the bullets that were fired had an upward trajectory of about 9 degrees, with an angle of approximately 30 degrees from right to left, in relation to the front of the building. Moreover, according to various tests performed in the laboratory, the speed of the bullets fired from the intermediate weapon varied between 74 and 77 m/s. 8.2.

The expert report on biomechanics [ 87 ] At trial, expert Denis Rancourt testified and filed a detailed report analyzing Jean-Pierre’s movement and Gilbert’s shot from a biomechanical point of view. [ 88 ] His report, the conclusions of which are neither contested nor contradicted by the Crown, was prepared after performing many laboratory tests.

His analysis is based on probative data that was supported by the evidence adduced at trial. [ 89 ] Taking into consideration the time required for the KIP (plastic bullet) to travel 12 meters, the time to fire the shot, perception and reaction time, Rancourt analyzed the different hypotheses in relation to Jean-Pierre’s movement. [ 90 ] With the help of charts mapping and juxtaposing Jean-Pierre’s jump with the time required to make the shot, Rancourt shows and concludes that it is [ translation ] “physically and physiologically possible” that a shot aiming for the hip hit Jean-Pierre in the head due to his downward movement after the shot had already been fired. [ 91 ] On page 16 of his supplementary report, Rancourt concludes his analysis as follows: [ translation ] The analysis has made it possible to determine: 1. that the event in question may have lasted as little as 1s; 2.

That if the bullet hit Jean-Pierre in the head when he was falling, it is physically and physiologically possible that Officer Gilbert was in fact aiming for or near the hip when he took the shot ; 3. That Jean-Pierre was at about the same height as when he was standing on the sill, when Officer Gilbert pulled the weapon’s trigger for the second shot, which hit Jean-Pierre; and 4.

That if Officer Gilbert’s perception time in the sequence of events is taken into account, Officer Gilbert decided to take a shot based on an observation of Jean-Pierre’s movements/position before he fell to the ground . [3] [Emphasis added.] [ 92 ] The Court reiterates that this expert report on biomechanics, which is neither contested nor contradicted, is based on well- established, probative data. This scientific analysis supports Gilbert’s testimony of the circumstances in which the shot was taken. 8.3.

The use-of-force expert [ 93 ] Expert Pierre Mathieu analyzed how the police operation was planned and how it unfolded to determine whether it complied with what is taught.

Aside from some details concerning one of the administrative forms [4] that are of no real consequence, Mathieu concluded that [ translation ] “the planning and execution by the SWAT team of the March 31, 2016, operation ... complied with operational methods and with what is taught”. [5] [ 94 ] With respect to Gilbert’s use of the intermediate weapon, Mathieu was of the opinion that it complied with [ translation ] “the teachings of the [ translation ] National Use of Force Framework” [6] insofar as he was aiming for a ‘green zone’”. [7] [ 95 ] He is also of the view that the position in front of the building was appropriate [8] and that there was no other viable option [9] in

light of Jean-Pierre’s active resistance [10] and the risks associated with his flight. 9. The legal principles 9.1. Manslaughter [ 96 ] The indictment brought by the Crown alleges that Gilbert committed manslaughter [ translation ] “by committing aggravated assault and using a firearm”. [ 97 ] Manslaughter is defined as follows in ss. 222 and 234 of the Criminal Code : 222.

(1) A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being.

(2) Homicide is culpable or not culpable.

(3) Homicide that is not culpable is not an offence.

(4) Culpable homicide is murder or manslaughter or infanticide.

(5) A person commits culpable homicide when he causes the death of a human being , (

a) by means of an unlawful act ; (

b) by criminal negligence; (

c) by causing that human being, by threats or fear of violence or by deception, to do anything that causes his death; or (

d) by wilfully frightening that human being, in the case of a child or sick person. … 234. Culpable homicide that is not murder or infanticide is manslaughter . [ 98 ]

Section 236 of the Criminal Code stipulates the following where a firearm is used: 236. Every person who commits manslaughter is guilty of an indictable offence and liable (

a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; [ 99 ] In this case, it is not contested that Gilbert’s action meets the definition of aggravated assault [11] within the meaning of the Criminal Code . No one contests that the intermediate weapon that he used is a firearm [12] within the meaning of the Criminal Code . [ 100 ] The case turns on whether or not excessive force was used.

Taking into account the applicable legal framework, the Court must determine whether Gilbert was justified in using his intermediate weapon as the evidence reveals he did. 9.2. The force used by the peace officers in the execution of their duties [ 101 ] It is recognized that peace officers have a duty to maintain the peace, prevent crime, and protect the lives of individuals and their property. In the discharge of their duties, they enjoy vast powers arising from both the common law and various statutory provisions. [ 102 ] Police officers are not above the law.

They do not have unlimited powers to use force, inflict injuries, or use deadly force just because they are acting in the course of their duties. In paragraph 32 of R. v. Nasogaluak , the Supreme Court points out the following: But police officers do not have an unlimited power to inflict harm on a person in the course of their duties. While, at times, the police may have to resort to force in order to complete an arrest or prevent an offender from escaping police custody, the allowable degree of force to be used remains constrained by the principles of proportionality, necessity and reasonableness .

Courts must guard against the illegitimate use of power by the police against members of our society, given its grave consequences. [13] [Emphasis added.] [ 103 ] The notions of “necessary force”, “reasonable force”, and proportionality are at the heart of the common law rules and statutory provisions surrounding the use of force by peace officers. [ 104 ] Canadian law recognizes that police officers are legally justified [14] in using force - and exempted from criminal and civil responsibility - if they respect the applicable legal framework and its limits. 9.2.1.

The Criminal Code [ 105 ] Sections 25 and 26 of the Criminal Code are the main legal basis authorizing police officers to use force when carrying out their duties. These provisions protect those tasked with administering and enforcing the law from any criminal and civil responsibility when the conditions are met. [ 106 ]

Section 25 stipulates: Protection of Persons Administering and Enforcing the Law Protection of persons acting under authority

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

a) as a private person, (

b) as a peace officer or public officer, (

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

d) by virtue of his office, is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessaryfor that purpose. … When not protected

(3) Subject to subsections (4) and (5), a person is not justified for the purposes of subsection (1) in using force that is intended or islikely 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 that person’s protection from death or grievous bodily harm. When protected

(4) A peace officer, and every person lawfully assisting the peace officer, is justified in using force that is intended or is likely to causedeath or grievous bodily harm to a person to be arrested, if (

a) the peace officer is proceeding lawfully to arrest, with or without warrant, the person to be arrested; (

b) the offence for which the person is to be arrested is one for which that person may be arrested without warrant; (

c) the person to be arrested takes flight to avoid arrest; (

d) the peace officer or other person using the force believes on reasonable grounds that the force is necessary for the purpose ofprotecting the peace officer, the person lawfully assisting the peace officer or any other person from imminent or future death or grievousbodily harm; and (

e) the flight cannot be prevented by reasonable means in a less violent manner. ... [Emphasis added.] [107] Moreover,

section 26 provides that the peace officer who uses excessive force is criminally responsible for the act: 26. Excessive force – Every one who is authorized by law to use force is criminally responsible for any excess thereof according to thenature and quality of the act that constitutes the excess. [108] In paragraph 34 of R. v.

Nasogaluak, the Supreme Court addressed the test that applies when courts must determine, as in thiscase, whether the force used by a peace officer was justified: Section 25(1) essentially provides that a police officer is justified in using force to effect a lawful arrest, provided that he or she acted onreasonable and probable grounds and used only as much force as was necessary in the circumstances.

That is not the end of the matter.Section 25(3) also prohibits a police officer from using a greater degree of force, i.e. that which is intended or likely to cause death orgrievous bodily harm, unless he or she believes that it is necessary to protect him- or herself, or another person under his or herprotection, from death or grievous bodily harm. The officer’s belief must be objectively reasonable. This means that the use of forceunder s. 25(3) is to be judged on a subjective-objective basis (Chartier v. Greaves, [2001] O.J. No. 634 (QL) (S.C.J.), at para. 59).

Ifforce of that degree is used to prevent a suspect from fleeing to avoid a lawful arrest, then it is justified under s. 25(4), subject to thelimitations described above and to the requirement that the flight could not reasonably have been prevented in a less violent manner.[15][Emphasis added.] [109] In paragraph 35, the Court adds that when analyzing the excessive nature of the force used, courts must take into account theparticularly demanding nature of police work and the danger related to carrying out their duties: Police actions should not be judged against a standard of perfection.

It must be remembered that the police engage in dangerous anddemanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances.As Anderson J.A. explained in R. v. Bottrell (1981), (BC CA), 60 C.C.C. (2d) 211 (B.C.C.A.): In determining whether the amount of force used by the officer was necessary the jury must have regard to the circumstances as theyexisted at the time the force was used.

They should have been directed that the appellant could not be expected to measure the force usedwith exactitude. [p. 218] [110] To determine whether a peace officer used excessive force incurring his or her criminal responsibility, the Court must perform acontextual analysis applying a subjective-objective basis.[16] [111] In paragraph 64 of Chartier v. Greaves,[17] the Ontario Superior Court of Justice pointed out that the actions of officers, whomust sometimes react quickly in urgent and potentially dangerous situation, must be considered in light of these unique aspects:

(i) "Some allowance must be made for an officer in the exigencies of the moment misjudging the degree of force necessary to restrain aprisoner". The same applies to the use of force in making an arrest or preventing an escape. Like the driver of a vehicle facing a suddenemergency, the policeman "cannot be held to a standard of conduct which one sitting in the calmness of a court room later mightdetermine was the best course." (Foster v. Pawsey) Put another way: It is one thing to have the time in a trial over several days toreconstruct and examine the events which took place on the evening of August 14th.

It is another to be a policeman in the middle of anemergency charged with a duty to take action and with precious little time to minutely dissect the significance of the events, or to reflectcalmly upon the decisions to be taken. (Berntt v. Vancouver). (

j) Police officers perform an essential function in sometimes difficult and frequently dangerous circumstances. The police must not beunduly hampered in the performance of that duty. They must frequently act hurriedly and react to sudden emergencies. Their actionsmust therefore be considered in the light of the circumstances. (k) "It is both unreasonable and unrealistic to impose an obligation on the police to employ only the least amount of force which mightsuccessfully achieve their objective. To do so would result in unnecessary danger to themselves and others.

They are justified andexempt from liability in these situations if they use no more force than is necessary, having regard to their reasonably held assessment ofthe circumstances and dangers in which they find themselves" (Levesque v. Zanibbi et al). 9.2.2. The raid [112] The power to carry out a hard entry arises specifically from the common law. Although police officers who execute a searchwarrant must usually give notice of their presence by knocking or ringing the doorbell, they may depart from this principle whenjustified by the circumstances. [113] In R. v.

Cornell,[18] the Supreme Court had to determine whether the police officers were justified in carrying out a hard entryduring a search for drugs. Concluding that there were reasonable concerns in that case justifying a hard entry, the Court defined theapplicable standard in paragraph 20: Where the police depart from this approach, there is an onus on them to explain why they thought it necessary to do so.

If challenged, theCrown must lay an evidentiary framework to support the conclusion that the police had reasonable grounds to be concerned about thepossibility of harm to themselves or occupants, or about the destruction of evidence. The greater the departure from the principles ofannounced entry, the heavier the onus on the police to justify their approach. The evidence to justify such behaviour must be apparent inthe record and available to the police at the time they acted. The Crown cannot rely on ex post facto justifications: see R. v. Genest, (SCC), [1989] 1 S.C.R. 59, at pp. 89-91; R. v.

Gimson, (SCC), [1991] 3 S.C.R. 692, at p. 693. I wouldunderline the words Chief Justice Dickson used in Genest: what must be present is evidence to support the conclusion that “there weregrounds to be concerned about the possibility of violence”: p. 90. I respectfully agree with Slatter J.A. when he said in the present casethat “[s]ection 8 of the Charter does not require the police to put their lives or safety on the line if there is even a low risk of weaponsbeing present”: para. 24. [Emphasis added.] 9.2.3.

Controlling the premises and subduing the occupants [114] Common law also recognizes that when a search is executed, police officers have the power to control the premises and subduethe occupants, including the power to detain and handcuff them, when necessary. In paragraph 38 of R. v.

McSweeney,[19] the Court ofAppeal for Ontario confirmed this principle as follows: [38] There is no question that during the execution of a search warrant police are entitled to segregate the occupants of the premises toensure officer safety, to prevent the loss or destruction of evidence, and to maintain the integrity of the search. They may giveappropriate directions to that end: see R. v. Connor (2009), 202 C.R.R. (2d) 43 (Ont. S.C.), at para. 82; Ahmed et al. v. McCaskill et al.,2015 MBQB 68, 317 Man. R. (2d) 42, at para. 70; Water v.

Toronto (Police Services Board), 2016 ONSC 7824. [Emphasis added.] [115] These legal principles being set out, the Court will now analyze whether it has been proved beyond a reasonable doubt thatGilbert committed manslaughter by using excessive force against Jean-Pierre. 10. Application to this case [116] From the outset, the Court reiterates that the cumulative effect of all these factors, which were known to the investigative team,made the concerns of violence reasonable and justified resorting to the SWAT team to carry out a hard entry.

In the context of this case,this way of proceeding was essential both for security reasons and to prevent the destruction of evidence. Taking into account all thecircumstances already discussed, the standard defined in Cornell was met and the officers had grounds to believe that the occupants ofthe search location might be armed. [117] Moreover, it appears from the evidence that the investigators and the SWAT team correctly planned the operation. The riskassessment form and the operational plan were completed and the requisite authorizations were obtained.

There were enough assets onsite and a deployment plan adapted to the circumstances and specifics of this case was devised. A prior recognizance of the premisestook place and two operational briefings were held. The roles and responsibilities of those taking part were properly defined and therelevant information was given to them in a timely manner. [118] In light of how the operation unfolded, the evidence reveals that many of the occupants of the apartment attempted to flee assoon as the officers stormed the place.

It appears that Jean-Pierre immediately rushed to the window of the front room, swept the curtainaside and quickly opened both windows wide. The evidence also shows that he pursued his flight by climbing onto the windowsilldespite the warning shot and shout from Officer [redacted] who yelled “Police!”. [119] Taking into account all the evidence, the Court accepts the testimony of Gilbert on the circumstances that led him to shoot aplastic bullet at Jean-Pierre’s hip to prevent his flight.

In light of all the circumstances, it has been proved that he was aiming for a “greenzone” and that he had a window of opportunity that allowed him to force Jean-Pierre back inside.

[ 120 ] It is noteworthy that Gilbert’s description of the situation is supported by the expert report on biomechanics and consistent with the chronology of events. Moreover, the fact that Jean-Pierre’s hip was exposed and that he momentarily looked back inside are elements confirmed by the other SWAT team officers present. [ 121 ] The Court accepts Gilbert’s testimony that he was certain that he would hit Jean-Pierre’s hip and that he never intended to hit him anywhere other than in this “green zone”.

In the Court’s view, there is nothing that casts doubt on the honesty, sincerity, and reliability of Gilbert’s testimony as a whole. [ 122 ] It should be recalled that the events unfolded extremely quickly and that the officers had to react rapidly to Jean-Pierre’s active resistance and the possible danger he represented.

Because of all these circumstances, the use of the intermediate weapon on a green zone was the only valid option available to them. [ 123 ] Considering all the elements known to Gilbert and the SWAT team about the search location – its use and its occupants – and in light of the situation as it unfolded suddenly before him, the Court concludes that Gilbert was objectively and subjectively justified in believing that the occupants of the apartment, including Jean-Pierre, might be armed. [ 124 ] Furthermore, the Court concludes that the concerns about violence and the serious consequences to the officers and citizens were real and justified using the intermediate weapon to put an end to Jean-Pierre’s active resistance by hitting him in a “green zone”. [ 125 ] After analyzing all the evidence, the Crown has failed to prove beyond a reasonable doubt that Gilbert used excessive force against Jean-Pierre during the March 31, 2016, police intervention. [ 126 ] Although the consequences of this event are indubitably tragic, dramatic, and catastrophic, it has not been proved that Gilbert incurred criminal responsibility by using unwarranted force. [ 127 ] For these reasons, he is acquitted. ____________________________ YVAN POULIN, J.C.Q.

Mtre Jean-Sébastien Bussières For the prosecution Mtre Louis Belleau, Ad. E. Mtre Annie Lahaise For the accused Dates of hearing: November 9 to 13, 16 to 20, and 24 to 27, 2020 December 2, 2020