A Port Moody police (PMPD) officer won't face assault charges in a two-year-old case in which a wanted man was seriously injured after he fell three storeys from a building to evade arrest.
In a decision today (Aug. 22), the BC Prosecution Service (BCPS) concluded that the available evidence from circumstances does not meet its charge assessment standard due to lack of evidence.
A statement reads that the BCPS was "not able to prove" that the officer committed an offence during the incident, resulting in no approved charges.
In a summary of witness statements, the BCPS described how three PMPD officers, two in uniform and one in plain clothes, tried to apprehend a man whose parole had been revoked for breaching his conditions.
No warrant to enter the home
The man's criminal record included multiple convictions for violent offences, including assaulting a peace officer and resisting arrest. He was considered by police to potentially be armed and the officers believed he would resist arrest.
The officers didn't have a warrant for entering the home and hoped they would arrest him coming or going.
On Sept. 15, 2021, one officer noted a vehicle was gone and thought "this would be a good opportunity to execute the arrest warrant, so they reassembled around the residence," the BCPS statement explained.
The team agreed that the plain-clothed officer would take up an observation position in front of the residence while the other two uniformed officers on the team would take back-up positions on side streets.
These back-up positions did not offer a direct line of sight to the residence, the BCPS noted in its report.
However, the subject officer at the front of the house believed he spotted the wanted man owing to his "distinctive" tattoos. Hearing yelling inside, and noticing the door was open, he radioed that he was at the front door and he needed assistance.
"Step it up," he reportedly said.
When the uniformed officers entered the house they saw two men seated in the living room and heard voices.
'He's running out the back'
One of the officers ran upstairs and heard the plain-clothed officer saying over the radio, "He's running out the back."
According to the BCPS report, the wanted man jumped from a third-story balcony, landing on an awning off the second floor and then onto the ground. He got up and ran but was quickly apprehended by the uniformed officers.
The man was taken to hospital with fractures to his left foot, hip joint, and hip socket during the incident.
In his statement, he said he was upstairs when a friend called him downstairs because someone was looking for him.
"He did not think it was a cop because 'nobody knew I was there.' He described telling the officer that he was going to get his ID and 'started back stepping,'" the report states.
In his witness statement, the injured man said the police officer did not say he was under arrest and came toward him at the foot of the stairs, pointing a gun.
He told investigators the officer "tried to grab his hand, so he ran up to the third-floor balcony and jumped off, trying to get away."
Intoxication may have impaired judgment
Neither of the uniformed officers were around when the plainclothed officer made contact with the wanted man.
However, one described hearing the officer giving the man commands to stop and that he was under arrest.
He claimed to hear the officer say, "don't do that," and then, "he’s running out the back."
"Both witness officers provided statements that the AP (affected person) stopped when he saw the police, but do not say that he put his hands up and told them he was not resisting, as alleged by the AP."
At the hospital, the injured man told the attending physician that he had used about one-two lines of crystal meth that morning.
The physician noted that the man was "unclear why he ran from the police but (the AP) suspected that it was because he was intoxicated from alcohol and crystal meth and that impaired his judgment."
The two men inside the home provided brief statements: one said his friend came down the stairs but was hesitant to "walk any closer." However, he said the officer was outside the door but during an interaction the man "slithered" from the officer's grasp.
The other man said he saw a police officer "flash" his badge from the area of the front sliding door and saw his friend run up the stairs, followed by the officer.
In its analysis, the BCPS noted that an arrest inside the house would have been unlawful because the officer did not have a warrant to permit entry. If he tried to make an arrest inside the home, the man would have been within his rights to resist arrest.
If however, the officer makes an arrest in hot pursuit — for example, If the arrest was initiated or occurred while the wanted man was outside the residence, or on the threshold — the officer would be justified in using a reasonable amount of force to accomplish the arrest.
Lack of evidence in location of contact
Although witness statements suggested a "clear possibility" that the arrest may have occurred inside the residence, the lack of information about the location of the interaction between the officer and the affected person made it difficult to come to a conclusion.
"The onus is on the Crown to prove the arrest was unlawful. In order to establish that, the Crown must prove the location of the arrest beyond a reasonable doubt. The evidence on this key issue is undeveloped," the BCPS states.
On other grounds, the officer could have been held responsible for the injuries suffered by the man in the fall from the window if the actions or reactions to the the unlawful arrest were reasonably foreseeable.
However, the BCPS concluded that such a prediction was not likely.
"A reasonable person would not have foreseen the AP's action as a likely consequence of the attempted arrest, and therefore no charge has been approved for this offence." the BCPS states.
"The evidence does not meet the charge approval standard to show that the arrest took place inside the residence. Therefore, there is no substantial likelihood of proving the arrest was unlawful. Accordingly, there is no substantial likelihood of conviction, and no charges are approved."
