Report to the Minister of Justice and Solicitor General Public Fatality Inquiry

Transcription

1 Report to the Minister of Justice and Solicitor General Public Fatality Inquiry Fatality Inquiries Act WHEREAS a Public Inquiry was held at the Court House in the City of Wetaskiwin, in the Province of Alberta, (City, Town or Village) (Name of City, Town, Village) on the 28 & 30 days of November, 2016, (and by adjournment year on the 1st day of December, 2016 ), year before W. Albert Skinner, a Provincial Court Judge, into the death of Lance Cutarm 30 (Name in Full) (Age) of MAMEO Beach, Alberta and the following findings were made: (Residence) Date and Time of Death: August 3, 2013 at 2114 hrs House S-10, Vanessa Firingstoney Residence, Pigeon Lake, Place: First Nation, MaMeO Beach, AB Medical Cause of Death: ( cause of death means the medical cause of death according to the International Statistical Classification of Diseases, Injuries and Causes of Death as last revised by the International Conference assembled for that purpose and published by the World Health Organization The Fatality Inquiries Act, Section 1(d)). Two gunshot wounds Manner of Death: ( manner of death means the mode or method of death whether natural, homicidal, suicidal, accidental, unclassifiable or undeterminable The Fatality Inquiries Act, Section 1(h)). Homicidal

2 Report Page 2 of 7 Circumstances under which Death occurred: See Attached Report Recommendations for the prevention of similar deaths: See Attached Report DATED December 6, 2016, at Red Deer, Alberta. Original signed by W.A. Skinner A Judge of the Provincial Court of Alberta

3 Report Page 3 of 7 Fatality Inquiry Report Lance Cutarm [1] The Inquiry heard oral evidence from: 1. Dr. Mitchell Weinberg, Medical Examiner 2. Marten McKinney, Peace Officer, Pigeon Lake Protection Service 3. Allan Brown, ASIRT Investigator 4. Larry Cutarm, father of deceased 5. Jeremy Augustine, Police Officer, RCMP 6. Vanessa Firingstoney, resident 7. Christine Branhoff, Forensics, RCMP 8. Victor Cutarm, Uncle of deceased 9. Lee Cutarm, brother of deceased 10. Kevin Krebs, Police Officer, RCMP 11. Laron Cutarm, brother of deceased [2] The Inquiry also reviewed 1. Medical Examiner Records 2. ASIRT Records 3. ASIRT Interviews 4. ASIRT Statements from Potential Witnesses 5. RCMP Records Circumstances under which Death occurred: [3] Based upon the use of the VICs camera, the location of the physical evidence at the scene, the immediate reporting of the incident by Cpl. Krebs while at the scene and his statements to the ASIRT investigation team, this inquiry can find no discrepancies as to the circumstances of the death of Lance Cutarm and Cpl. Krebs testimony. [4] In comparison, the civilian witnesses were in various states of intoxication at the scene and their testimony had severe contradictions that could not be reconciled with the VICs camera, the physical evidence nor their own prior statements given to the authorities. As such this Inquiry cannot rely on the evidence of Larry Cutarm, Victor Cutarm, Lee Cutarm, Laron Cutarm nor Vanessa Firingstoney in making its findings. In consideration of the above, the following are the facts as accepted by this Inquiry: [5] On August 3, 2013, at approximately 9:00pm, Cpl. Krebs was engaged with another officer, Marten McKinney while stopped at the side of Hwy #780 north of Hwy #13. Cpl. Krebs was in an unmarked RCMP police cruiser while Officer McKinney was in a fully marked county peace officer vehicle. While at that location Cpl. Krebs noted a pickup truck pass their location in a slow manner and that a passenger in the vehicle leaned out of the vehicle and gave the officers a derogatory hand gesture. Cpl. Krebs also noted that the passenger was not wearing his seatbelt. As a result Cpl. Krebs decided to initiate a stop of the vehicle and pursued the pickup southbound on Hwy #780. The officer upon accelerating initiated his emergency lights which automatically activated the VICS camera. The vehicle continued to a driveway where it turned westbound. The officer followed and engaged his siren. The pickup continued to the end of the driveway (a distance of about one football field) and came to a stop. The officer approached the driver s side door of the pickup and

4 Report Page 4 of 7 engaged the driver in a courteous manner asking the driver, later identified as Larry Cutarm, as to the reason why it took so long for him to stop. Mr. Larry Cutarm responded in the Cree language Kekway, meaning what, and the officer again made the same inquiry. At that time the front passenger intervened and the officer informed the passenger that he was stopping the pickup because of the obscene gesture directed at him by the passenger and because the passenger was noted not to be wearing his seatbelt. The passenger denied this. [6] Upon continuing his encounter with the driver, Larry Cutarm, the officer noted a strong odour of alcohol coming from the driver and along with other indicia of impairment formed the opinion that the driver s ability to operate a motor vehicle was impaired by alcohol. As a result he directed the driver to come to his police car for a chat. The officer attempted to direct the driver to his car at which time the driver told the officer not to touch him and that he did not want to go. The officer responded by keeping contact to a minimum but informed the driver that he was under arrest for impaired driving and that he would have to come to the police car. When the driver continued to resist, the officer placed him in a soft tissue restraint cocking Mr. Larry Cutarm s wrist towards his arm to obtain compliance. A scuffle ensued and the officer restrained the driver in a neck hold in an attempt to move the driver to the police car. [7] While this encounter with Mr. Larry Cutarm was transpiring and unknown to the officer, four passengers from the pickup exited the passenger side of that vehicle. These people were Lee, Lance and Laron Cutarm, sons of Larry Cutarm and Victor Cutarm, their uncle. The brothers, all adult males were larger than the officer in size and height. After speaking together, the brothers quickly approached the officer. [8] The officer specifically noted that Lance Cutarm was approaching him with his hands in a fist and that the other brothers fanned out as to encircle the officer. The officer warned the approaching three males to stay back or that he would shoot them. When they continued to approach, the officer released Larry Cutarm and again warned them to back off several times or that he would shoot them. The officer stated I will shoot you fucker. The officer then retreated from the parked vehicles in an attempt to create space between him and the brothers. The officer exited the driveway and sprinted 10 to 15 yards down a slight slope into a yard. At that time he drew his firearm and again warned the brothers not to approach any further by stating I will fucking shoot you. The brothers again fanned out while approaching and the officer drew his OC spray but could not release the plastic safety cap. Upon backing up further, the officer lost his balance on a guideline supporting a tent that was in the yard and dropped the OC spray canister. [9] The officer testified that at this point he was scared shitless and believed that they were intent on severely injuring him or killing him. Additional factors concerning the officer were that he was in an unknown area, away from support, and blocked from getting to his police car. As well despite the repeated strong warnings and the physical appearance of the firearm, Lance Cutarm continued to approach the officer directly while Laron approached the officer from the officer s right side. The officer discharged his firearm and struck Lance Cutarm, who was about 6 feet away, and closing, with two bullets in his torso and fired at Laron, who was next closest, striking him in the left armpit area. Lance Cutarm went to the ground and Lee Cutarm went to assist him. Laron Cutarm walked away from the officer and returned to an area around the parked cars. The officer then ran to his car and noticed Larry Cutarm inside his police car. Fearing that Larry Cutarm was attempting to obtain the shotgun positioned in the police car, the officer continued to have his firearm drawn and ordered all to the ground. Larry Cutarm removed a transmitter from the police car, threw it at the officer, and the officer grabbed or pushed him from the police car, and

5 Report Page 5 of 7 immediately backed out of the driveway while simultaneously reporting shots fired to telecoms. [10] The officer backed out the full lane from the residence onto the highway when he noticed that the vehicle previously operated by Larry Cutarm was coming out of the driveway towards him. The officer then left the scene but returned once he determined that the pickup was no longer pursuing him. He stayed close to the scene and remained there until backup arrived. [11] As soon as possible, and by the next day, the secured area was searched and exhibits located. This included the shell casings from the officer s firearm, the OC spray canister, the VICs camera recording, and the position of Lance Cutarm s body. As indicated all this evidence supported the officer s testimony. [12] The relatives to Lance Cutarm alleged that the response by the officer to his perceived danger was racially motivated. There is no evidence to support this. From the first encounter with Larry Cutarm to his reporting to telecoms there was no racial comments recorded. In fact even at the heightened emotions of the officer to the danger he faced and his emphatic use of swear words to convey the seriousness of the situation to them, no racially charged words can be heard. Additional Facts: 1. The officer was not trained in the use of a taser and did not have a taser with him at the time of this event. However, even if possessed with a taser it would not have been effective when confronted with more than one aggressor. 2. As the officer did not have a taser with him at the time of the events, it was not possible that the officer tasered Larry Cutarm after he had been shot as alleged by the father, Larry Cutarm. 3. The medical examiner determined the blood alcohol content of Lance Cutarm, the deceased, was between 270 and 310 mgs/100 ml of blood. Cannabis was also noted to be in his blood. The ME s report contained the following comment, Cannabis is a psychoactive substance that acts on the brain to alter the way in which a person might behave or react to external stimulate. The use of cannabis may adversely affect a person s perception of space and time, information processing, attention and coordination. The effects of cannabis are likely to be enhanced if the drug is taken in combination with alcohol." 4. Cst. Jeremy Augustine confirmed the highly intoxicated condition of the father/driver Larry Cutarm and his continued resistant behavior towards authorities when the officer placed him under arrest for operating his motor vehicle while impaired. This occurred when Larry Cutarm drove towards the officer while the scene was being secured. The events of this second arrest procedure, that involved the use of a stun gun and being forced to the ground and handcuffed, is confused by Larry Cutarm as being part of the first arrest at the scene. As well Larry Cutarm declined to give an initial statement to the investigating officers indicating that he wanted a lawyer and needed to sober up. 5. Victor Cutarm initially denied even being in the pickup immediately before the events and believed he was in a ditch drinking a beer some 200 to 300 yards away from the driveway when he heard a commotion. The VICs camera clearly shows Victor exiting the pickup from the passenger side and walking

6 Report Page 6 of 7 away prior to the discharge of the firearm. His walk appears to be catatonic in nature likely from the consumption of alcohol. 6. Laron Cutarm s blood alcohol level was 207mgs/100mls of blood at 12:50am on August 4, 2013 and he admitted to the officers that he had quite a bit to drink. He had little specific recall as to the events leading up to the shooting. 7. Vanessa Firingstoney testified that she had no recall of the events as she had been drinking inside her home. Based upon her statement to the investigators she found out recently that the Cutarms are distant relatives but did not know why they came to her residence that night. 8. Lee Cutarm acknowledged in his statement that he had been drinking with his father and brothers and as a group they had consumed a 15 pack of beer and a 26oz of liquor. From his testimony and statements to the police it appeared that he had very little independent recall of the events and relied upon what others had told him. 9. Cpl. Krebs was a 14 year member of the RCMP and had done his entire service at the Wetaskiwin detachment. He testified that he liked working in the Wetaskiwin region and had declined transfers. Prior to his service with the RCMP he had been an auxiliary for 11 years in Edson. 10. The Cutarms at no point possessed any weapons. Conclusion: [13] Cpl. Krebs was within the execution of his duties at the time of this event. The officer s perception that he was under the threat of immediate risk of serious bodily harm was a reasonable and appropriate conclusion based upon the circumstances that he faced. The officer took all appropriate steps to avoid the use of lethal force. This included releasing the father, despite having placed him under arrest, attempting to distance himself from the threat, warning that he would use his firearm if the Cutarms did not disengage from pursuing him, displaying both his OC spray and his firearm and using emphatic language informing the Cutarms of its pending use. When the 3 brothers continued to approach the officer and were in position to be in an immediate danger to the officer, he used only the amount of force necessary to address the objective and subjective danger. As soon as he could he disengaged from the scene immediately by gaining access to his police car and calling for assistance. All steps taken were within the parameters of Use of Force Policy of the RCMP and, given the totality of the situation, were appropriate. [14] There is no evidence that force used was racially motivated. [15] The role of a Judge in a Fatality Inquiry is to determine if there are recommendations that would prevent similar deaths. After hearing testimony and reviewing all of the evidence, this court finds the use of lethal force by Cpl. Krebs was reasonable in all of the circumstance in order to protect himself from imminent and serious harm. [16] Counsel for the Cutarm family, Amanda Hart-Dowhun made a number of suggestions to this court to ease perceived tensions between the RCMP and the Ermineskin Cree Nation. These included that: 1. the RCMP engage directly with band members and elders for a community based policing strategy, 2. the RCMP engage in traditional dispute resolution processes, 3. the RCMP take aboriginal cultural training 4. a Memorandum of Understanding be drafted and updated between the RCMP and the band, 5. the Maskwacis RCMP consult between detachments about best practices,

7 Report Page 7 of 7 6. a wider use of Cree interpreters be used during investigations, 7. the band be advised and consulted about the use of technology on the reserves, specifically with regard to the use of drones, 8. accessibility to court be increased for the band by the expansion of courthouse facilities on First Nation reserves. [17] Although all of these suggestions have merit these suggestions go outside the mandate of this Court in regards to determine if there are recommendations that would prevent deaths in similar situations. Recommendations for the Prevention of further Deaths: [18] Given the findings of the facts in this situation this court cannot say that the implementation of these recommendations would have changed the outcome and therefore I make no recommendations that would prevent similar deaths in similar situations.