Report to the Minister of Justice and Solicitor General Fatality Inquiries Act

Public Fatality Inquiry

WHEREAS a Public Inquiry was held at the Courts Centre in the City of Calgary , in the Province of , (City, Town or Village) (Name of City, Town, Village) on the 4-6 days of December , 2018 , and year on the 18-20 days of November , 2019 , year before Heather A. Lamoureux , a Provincial Court Judge, into the death of Ryan Daniel Sommers 30 (Name in Full) (Age) of Calgary, Alberta and the following findings were made: (Residence)

Date and Time of Death: October 31, 2014 at 2:21 a.m.

Place: Langin Place, 433 McLeod Trail S.E., Calgary, Alberta

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)).

The Certificate of Medical Examiner, Tab 2 of Exhibit F1 identifies the immediate cause of death as a “penetrating gunshot wound to the torso”. The Medical Examiner confirms the manner of death as a homicide. The examination by the Office of the Medical Examiner showed “a single gunshot wound to his torso”. The gunshot wound entered the left chest of the deceased, causing a lethal, internal organ injury.

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

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Circumstances under which Death occurred:

See below.

Recommendations for the prevention of similar deaths:

See below.

DATED December 18 , 2019

Original signed by at Calgary , Alberta. Heather A. Lamoureux A Judge of the Provincial Court of Alberta

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Circumstances under which Death Occurred:

This public fatality inquiry centered on the tragic death of Ryan Daniel Sommers who was shot during an armed alteration with members of the Calgary Police Service. Mr. Sommers died as a consequence of a gunshot wound to the torso.

At the inception of the inquiry extensive Exhibits were entered described as follows:

FI: 3 ring black binder with tabs A & B, 1-23 F2: 3 ring black binder with tabs D-G and 24-57 F3: Photocopy of officer’s notes, 5 pages, 2 sided F4: Glossary of all Regimental numbers, call signs and other key terms F5: DVD – Ryan Daniel Sommers CPS 001838 F6: Copy of all personnel memorandum prepared by Chief Constable Roger Chaffin, dated May 29, 2018, 3 pages F7: Copy of the CPS in-service recruit program lesson titled Strategic Communication and De-escalation (in-service course, 9 pages) F8: Copy of the Strategic Communication and De-escalation in-service course training standard, 18 pages F9: Curriculum vitae of Raymond John Robitaille F10: One bound booklet titled Use of Force in the Calgary Police Service, prepared by the Honourable Justice Neil Wittmann, dated April 2018 (herein after described as the Wittmann Report) F11: 3 ring black binder with tabs 58-80 F12: Excerpt from the Iacobucci Report – Police Encounters with People in Crisis– The Ontario Use of Force Model F13: Draft, subject to revision, Use of Force Policy, Sealed by Court Order, pursuant to s. 40.1(1) of the Fatality Inquiries Act, RSA 2000, cF-9

This public fatality inquiry heard evidence during the course of, and immediately subsequent to, the preparation and release of the Wittmann Report. The Wittmann Report is the most comprehensive examination ever conducted of training, practice, procedure, protocol of the City of Calgary Police Service, in connection with use of force. The fatality inquiry will be making extensive reference to the Wittmann Report and include excerpts of that report with respect to the recommendations and implementation of those recommendations by Calgary Police Service.

At the inception of the fatality inquiry the Court heard evidence from two civilian witnesses, Daniel Evans and Daniel Geisler. Both men resided in the apartment facility, Langin Place, with the deceased, Mr. Sommers. Mr. Geisler explained that 433 McLeod Trail, Langin Place, is a “harm reduction facility”. He informed the Court that many of the people residing at the residence at the time of the shooting, were suffering from physical or mental health issues. Langin Place provided apartments for 50 men on two floors with separate apartments but shared washrooms, five per floor. On October 31, 2014, Mr. Geisler was recovering from surgery when he heard a loud knocking at the door of his apartment. He identified the individual knocking at his door as Ryan Sommers. The knocking persisted for 15-20 minutes which caused Mr. Geisler to lose patience and to begin swearing at Mr. Sommers. Mr. Geisler described Mr. Sommers as suddenly turning around and he observed him to “cock a pistol”. Mr. Geisler believed this to be a real firearm and so he returned immediately to his room. Mr. Geisler heard Mr. Sommers swearing at him and he saw police cars outside of the residence. At one point, Mr. Geisler opened his door to see what was happening and he observed three police officers with shotguns who commanded “get back in your room”. Mr. Geisler was asked to give specifics about the nature of the firearm that he thought Mr. Sommers was holding and he identified it as a “Colt 45 or something similar”. Mr. Geisler heard voices of the City of Calgary Police and then he heard

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the sound “pop pop” which he identified as a couple of shots. (Mr. Geisler’s statement is in Exhibit F2 at tab D 36.) Daniel Evans also resided at Langin Place on October 31, 2014. Mr. Evans had been returning to Langin Place from the food bank and he observed a “guy” with a “silver gun in his hand”. Mr. Evans said that he told the manager that there was a “guy with a gun up there”. Mr. Evans did not want to refresh his memory from the transcript of his interview given after this event occurred. The transcript is in Exhibit F2 at tab D 26. Mr. Evans’ evidence given viva voce to the fatality inquiry appears to be adversely impacted by the passage of time as Mr. Evans thought these events occurred during the middle of the day. In fact, the events occurred in the early morning hours of October 31, 2014.

The fatality inquiry heard extensive evidence from Leonard Mark Minello, a member of the Alberta Serious Incident Response Team (ASIRT). Mr. Minello is an investigator with ASIRT whose mandate is to investigate police actions which have resulted in serious injury or death to another person. Mr. Minello is the investigator charged with preparing the ASIRT report with respect to the events leading to the death of Mr. Sommers. The full report is contained within Exhibit F2 at tab D 24. Mr. Minello explained to the fatality inquiry that his role as an ASIRT investigator is fact finding. Within an hour of the event occurring, Mr. Minello met with the CPS homicide unit to begin gathering all of the facts pertaining to the shooting and death of Mr. Sommers. The Court concludes that the extensive report prepared by ASIRT fulfills all of the necessary requirements of a full investigation into the facts leading to Mr. Sommers death. Mr. Minello explained that the 911 call with respect to the actions of Mr. Sommers, came in “just after 2 a.m.”, October 31, 2014. The call came in at 2:08 a.m. The CPS were dispatched at 2:09 a.m. The initial confrontation occurred in the east wing of Langin Place, at the threshold of the doorway leading to Mr. Sommers’ apartment, apartment 203. Four officers had been dispatched: Officers McGregor, Oakey, Gillis, George. They were under the command of Sergeant Horvath. The unit was dispatched with a carbine rifle and 26 bullets. Sergeant Horvath directed the unit to contain the doorway to apartment 203, to knock on the door, and to back up to an area of cover to determine whether anyone would respond to the door knock. In the meantime, Sergeant Horvath, the command person in charge of the team, tried to locate a phone number for Mr. Sommers, however, no phone number was discovered. Mr. Minello informed the Court that the carbine rifle carried by police is also known as a C-8 rifle. The events unfolded very rapidly with 12 minutes, 30 seconds from the time of dispatch to the statement “shots fired”. At the time of the 911 call, CPS were informed that the caller (Mr. Evans) informed a 911 dispatcher that a weapon had been “pointed at him”. Mr. Minello noted that when police were instructed by Sergeant Horvath to knock on the door, they did not initially announce police presence. Rather, the unit member knocked on the door and backed up to a position of cover in an alcove. Mr. Sommers opened the door in response to the knock and was observed to hold in his right-hand what police believed to be a handgun. The handgun was articulated up at the right chest. When the officer saw the handgun, he called out “gun”. At this moment Mr. Sommer’s rotated towards the officer and his hand, holding what the officers believed to be a handgun, came off his chest. Officer Oakey, the lead officer, fired two shots from his firearm. One bullet hit Mr. Sommers in the chest. The second bullet struck the wall. Shots were fired at 2:21 a.m. The time lapse between the initial door knock by police on the door of Mr. Sommers’ apartment and the first shot fired was 38 seconds. Immediately after the firing of shots at 2:21 a.m., Mr. Sommers was seen to retreat back into his apartment. Officers were shouting “come out with your hand up”. Nothing occurred until 3:36 a.m. when police sent a robot into Mr. Sommers apartment. This determined that Mr. Sommers was lying on the floor, motionless. The handgun that he had been holding was on the floor. Mr. Sommers was declared deceased at 3:53 a.m. The handgun observed by police in the hand of Mr. Sommers at the time of the shooting and subsequently found on the floor of Mr. Sommer’s apartment, was later determined by police to be a replica firearm. The ASIRT investigation determined that the cause of death was a gunshot wound which struck Mr. Sommers in the heart and liver. Mr. Sommers was 30 years of age at the time of his passing.

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ASIRT investigated Mr. Sommers personal background and determined a history of mental illness, a suicidal ideation four days prior to death which had caused a Form 10 to be issued and a previous suicide attempt in April of 2014. ASIRT determined that Mr. Sommers’ family was aware of his struggle with mental illness. The brother of Mr. Sommers informed ASIRT that Mr. Sommers had been suffering from bipolar issues and schizophrenia. At the time of the toxicology report it was determined that Mr. Sommers blood alcohol was three times the legal limit and there was a trace of methamphetamine, and multiple prescription medications in Mr. Sommers’ blood. The toxicology report is in Exhibit F1 at tab 5. The conclusion of the ASIRT investigation was that the use of force by CPS, leading to the death of Mr. Sommers, was justified. The emergent situation happened “very rapidly” with 12 minutes elapsing between the time of dispatch and the final event. During this 12 minute period of time, police were dispatched, they arrived at scene, they were required ascertain ‘on the ground’ information, they were made aware that someone was in the building with a handgun. Police concluded that there was an urgent need to protect other residents of the building. In the ensuing sequence of rapidly unfolding events, police were confronted with a civilian holding a firearm in his hand which was pointed in the direction of officers. The forensic analysis of the firearm by a forensics analyst determined that the replica firearm held in the hand of Mr. Sommers resembled a firearm known as a Wolfer pcs handgun.

The Sergeant commanding the operation and response by CPS on the night in question, provided testimony to the Inquiry. Sergeant Laszlo Horvath has extensive police experience of 21 years. Sergeant Horvath testified that it was his responsibility to direct the police units responding to the 911 call. He was aware of the complaint made on the 911 call of a male who was threatening a neighbour with a gun and the words “he would blow his head off”. Sergeant Horvath was located only a couple of blocks away from the location of the threat and he arrived at the scene at 2:09 a.m. He directed his police unit to divide into two units. He was informed by Acting Sergeant Gillisthat Mr. Sommers was “arrestable for uttering death threats”. Sergeant Horvath sent his unit to the second floor where they believed Mr. Sommers’ apartment to be located. He directed the police unit to contain Mr. Sommers. His direction was issued at 2:13 a.m. Sergeant Horvath testified that this incident was classified as a code 300 which means an incident involving a firearm. At the time of the 911 call, police were aware that a firearm had been indicated by the caller. Sergeant Horvath outlined the unsuccessful attempts police made to get a telephone number for Mr. Sommers. He instructed background checks to be done by Acting Sergeant Curtis. The information concerning the issuance of Form 10 prior to this incident did not impact police strategy or actions as they were treating the situation as an individual with a gun threatening another individual. Public safety was the primary concern. Officer Horvath issued a direction to his unit at 2:14 a.m. to inform them that if the offender came out of the apartment, he was to be challenged and taken into custody. If the offender went back inside, police were not to follow him into the apartment. During these fast unfolding events, Sergeant Horvath had concluded that Mr. Sommers was arrestable for the offence of uttering threats to cause death or bodily harm. Sergeant Horvath had formed a reasonable opinion that police had lawful authority to arrest Mr. Sommers.

At 2:20 a.m., when police had not been successful in locating a phone number for Mr. Sommers, Sergeant Horvath requested a member of his unit to undertake a door knock on the apartment unit of Mr. Sommers to confirm that he was inside. Sergeant Horvath was uncertain if the unit announced police presence before they knocked on the door. He could only hear what was transmitted to him via radio. Sergeant Horvath testified that he did hear the word “police” uttered after an officer indicated on the radio that the door was opening. At 2:21 a.m. shots were fired. Sergeant Horvath notified the duty inspector who supervises the operation of everyone in the police force.

Sergeant Horvath explained to the Inquiry that lethal force can be used by police when there is an imminent threat of death or grievous bodily harm. Police training permits police to fire their

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weapons to stop the threat. Officers are trained to aim their weapons at the “middle of the body”. Sergeant Horvath explained to the Court that police are not permitted to “just injure” in the case of imminent threat of death or grievous bodily harm. Police are trained to “stop the threat”. Sergeant Horvath followed the Calgary Police Use of Force Policy, a guideline then in effect. As will be discussed further in this report, the Use of Force Policy is undergoing significant updating in a document entitled Draft Use of Force Policy, marked as Exhibit F13. This draft is subject to further revision. Sergeant Horvath was asked at the conclusion of his evidence as to whether he had any suggestions for the Court to prevent similar deaths. He confirmed that there was nothing that he would do differently as he considered that police responded and acted in accordance with approved use of force policy. Sergeant Horvath confirmed that there were no changes to policies or training procedures directly as a result of this incident. It is important to note that after a number of tragic events involving police use of firearms, the Chief of Police commissioned the Wittmann Report. All recommendations in the Wittmann Report have been accepted or accepted in principle by the City of Calgary Police.

Constable Tyler McGregor was a member of Calgary Police unit responding to a 911 call involving Ryan Sommers. Constable McGregor, armed with a side arm, taser, baton, spray and handgun, arrived at the scene at 2:10 a.m., October 31, 2014. Constable McGregor’s partner had a C8 assault rifle. Inside the police van occupied by Constable McGregor, was an additional firearm, a shotgun. Constable McGregor, along with Officers Oakey, Gillis and George, made their way to the second floor of the multi-unit residence in which Mr. Sommers resided. They used the stairs on the far east side of the building. Constable McGregor testified that police did not know if Mr. Sommers was actually inside his apartment at this time. There was some information provided to Constable McGregor of potential mental illness but he was not certain if this related to the offender or the complainant who had called 911. Constable McGregor and his fellow officers formed into what is known as a diamond position. Police were instructed by Sergeant Curtis that Mr. Sommers was arrestable for the offence of uttering threats to cause death or bodily harm. The diamond formation had Constable McGregor at the apex, Constable Oakey to the right, Constable Gillis to left and Constable George at the rear. Constable McGregor was told that Mr. Sommers had been previously apprehended on a Form 10 and he was aware that there was no phone access to Mr. Sommers. Constable McGregor indicated that the unit did not know Mr. Sommers’ location in the residence. Sergeant Horvath discussed the police strategy over the radio and asked if police were in position to conduct a door knock. Constable McGregor responded they the unit could make their way to the door of the residence and accordingly Constable Oakey went ahead and knocked loudly on the door of the resident unit believed to be occupied by Mr. Sommers. Constable McGregor testified that he believed his counterpart Constable Oakey announced “police”. Interestingly, Constable McGregor indicated that as a consequence of the high stress of the situation he may have been suffering from some auditory exclusion issues immediately after the event and during his immediate interview with ASIRT. Constable McGregor was clear to say that basic training requires police to say “police, don’t move” if a weapon is involved. After the door knock was undertaken, the four police officers retreated back to a position of cover. When they were two thirds of the way back to the place of cover, they observed the door knob of the unit to turn. Constable McGregor called out the words “Calgary Police” when the door swung open. A male exited the door and Constable McGregor immediately noted that in his right hand he was holding a handgun. Constable McGregor yelled out “gun!”. Other officers began issuing commands, “police, don’t move”. Mr. Sommers then turned towards the police unit, pulled his gun away from his chest and turned the gun towards Constable McGregor. In Constable McGregor’s opinion, a “line in the sand” had been crossed and Mr. Sommers was now a direct threat to Constable McGregor. Lethal force was necessary to stop the threat. Constable McGregor looked through the pinhole of his firearm, and he squeezed the trigger. Simultaneously, he saw a ripple on Mr. Sommers shirt and heard a shot fired from his right side by Constable Oakey. Constable McGregor let his finger off the trigger. Mr. Sommers then disappeared into the unit as the second bullet hit the wall. Constable McGregor and Constable Oakey then made sure they had suffered no wounds. Each checked

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the other, and determined that no officer had suffered a bullet wound. They continued to challenge Mr. Sommers to exit the apartment. There was no response. Constable McGregor indicated to the Court that time lapse from the door knock to the shots fired by police occurred within 2:19 a.m. to 2:20 a.m. Constable McGregor confirmed that he believed the actions of his team to be in accordance with police policy on the use of force. The “offender” (Mr. Sommers) had put officers and public at the risk of imminent death or serious bodily harm. In this situation, other types of police weapons are not an option. OC spray is not an option when dealing with an offender who has a firearm. Taser is not an option with dealing with an offender with a firearm. Lethal force is the only option. Police are trained to fire at the center of the chest until there is no longer a threat. Constable McGregor was specifically asked as to whether there was any possible manner of de-escalation which would have led to an alternate outcome. Constable McGregor replied: “Absolutely not, a gun was pointed, lethal force was necessary”.

Constable Curtis Gillis was also a member of the CPS team responding to the 911 dispatch of Ryan Sommers. Constable Gillis arrived at the scene with awareness that there had been a threat uttered by a man who was “going to blow somebody’s head off”. Constable Gillis indicated that there was information that a gun was involved. Constable Gillis was in possession of a C8 rifle which has 28 rounds per magazine. This rifle possesses a special sight distance in which the target is indicated by a red dot in the sight system attached to the rifle. Constable Gillis agreed that as they entered Langlin Place they formed the diamond formation required to provide police with a 360 degree view of the scene. Constable Gillis was on the right point of that diamond. Constable Gillis understood the orders from Sergeant Horvath to mean that if a male exited the apartment, police were to challenge him. If the male went back into the apartment, police were not to pursue him. Constable Gillis was made aware that there was no phone for the apartment and he was aware of an inquiry by Sergeant Horvath as to whether the unit was comfortable with doing a door knock. The unit discussed strategy, moved up to the door in the diamond formation, a door knock was undertaken, and the diamond formation then retreated back. During the course of these actions, Constable Gillis guided Constable Oakey so that he would be able to focus on the door. Constable Gillis testified that after the door knock and the retreat backwards in the diamond formation, the door of the apartment began to open. Constable Gillis alerted others that the door was open. Constable Gillis then observed Ryan Sommers in the threshold of the door, carrying a handgun in his right hand, held against his chest. Constable Gillis heard someone yell “drop the gun”. He then observed Mr. Sommers to look left and then towards police on the right. As he did so, Constable Gillis noted that Mr. Sommers was holding a firearm which appeared to be moving. As Constable Gillis did not have target isolation, he was unable to fire his weapon. He did hear the shots fired from the C8 rifle of Constable Oakey. Immediately after the shots were fired, Constable Gillis issued challenges to Mr. Sommers, uttering the words “police, you’re under arrest, exit now with nothing in your hands”. There was no response to these words. The unit waited until they were relieved by other officers. Constable Gillis testified that police are able to use lethal force if an individual poses a threat of death or grievous bodily harm.

The next member of the police unit called to the 911 dispatch was Constable Michael George. Constable George has been with CPS for five years and prior to that from 2004-2013, he was a member of Military Police. Constable George was partnered with Constable Oakey. The two constables were dispatched at 2:09 a.m. with the information that there was suspicious person with a weapon, a male had threatened another male with a firearm, uttering words that he would “blow his head off” if he did not get money. Constable George testified that the officers proceeded up to the second floor where Mr. Sommers’ unit was located and the officers positioned themselves in the alcove 10-20 feet away from Mr. Sommers’ unit. Constable Oakey had a C8 rifle. Constable George was in possession of his firearm. Constable George testified that police knew a Form 10 had been previously issued with respect to Mr. Sommers mental health issues. Police attending the scene were aware of mental health concerns with respect to Mr. Sommers. Constable George understood the command from Sergeant Horvath

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that if a male exited the unit, police were to challenge him. If he then went back into the unit, police were not to follow. Constable George, like the other officers, was advised by Sergeant Horvath that Mr. Sommers was arrestable for uttering threats. At 2:20 a.m. Sergeant Horvath requested a door knock on the residence of Mr. Sommers. Constable Oakey was the officer who undertook the door knock. Constable George testified that an announcement was made as the door knock occurred “Calgary Police”. After the door knock, police retreated to an alcove whereupon Constable George heard a fellow officer say, “door opening”. Constable George turned to face unit 203 while another officer yelled “Calgary Police, show me your hands”. Constable George testified that there was a man with glasses, a black sweater and jeans, with a firearm in his right hand. The weapon was held in the center of Mr. Sommers but as he came out the door, Constable George observed that the firearm was now pointed towards police. Constable George began to fear immediate grievous bodily harm. Two shots were fired by police from the C8 carbine rifle. One shot struck the center of Mr. Sommers. Only seconds transpired between the opening of the door by Mr. Sommers and the shots fired. It was the consensus of the unit at the scene that all members of the unit on the second floor outside the door of Mr. Sommers’ apartment had seen the firearm in his possession. In the opinion of Constable George, de-escalation was not possible. He testified that the subject exited the residence and pointed a firearm at police, giving them no chance to de-escalate the situation.

Constable Michael Oakey was the final officer to testify with respect to the events that unfolded at the entrance of Ryan Sommers apartment. Like the other officers, Constable Oakey confirmed the 911 dispatch to a weapons complaint. He, like the other officers, knew there had been a prior mental health issue and prior Form 10 issuance with respect to the subject, Ryan Sommers. Constable Oakey testified that he arrived on scene at 2:11 a.m. whereupon a diamond formation was formed by the officers. They proceeded up the stairs to the second floor to the apartment. The officers initially took cover in the alcove. Constable Oakey understood his plan of action to be that police were to challenge the subject if he came out of the apartment, but let him go back into the apartment if he chose to do so. Sergeant Horvath informed Constable Oakey, as he did the other officers, that Mr. Sommers was arrestable for charges of uttering threats. Constable Oakey understood his instructions to do a door knock and then retreat back to the alcove. Constable Oakey undertook the door knock and yelled out “police”. Constable Oakey was in front of the diamond formation. Mr. Sommers exited the door of the unit, turned to the left, turned to the right, with a pistol held against his chest. One of the officers yelled “gun!”. As Mr. Sommers turned towards the police officers, the “weapon followed”. Constable Oakey reasonably believed that he and his fellow officers were facing imminent death or grievous bodily harm. He fired two rounds. The first round struck Mr. Sommers in the middle of his chest, the second hit the concrete. Constable Oakey testified that he was familiar with the CPS Use of Force policy. Constable Oakey testified that the only use of force option that he could consider at the time was the lethal force option as Mr. Sommers had come out of his apartment with a firearm. Constable Oakey was asked whether any de-escalation measures were available to officers on that day. Constable Oakey replied definitively “Tt was not. We were faced with an imminent threat.”

After hearing the foregoing evidence, the Court directed that further evidence be called by Inquiry counsel with respect to the policy of use of force by police. The Court directed evidence with respect to the following specific issues:

1. The work of Calgary Police Strategic Planning Committee tasked with integrating into police practice, the Wittmann Report recommendations. 2. The design of training for front line officers with respect to skill enhancement in high- stress interactions with members of the public, including threat assessment training. 3. Issues associated with the integration of the core values identified in the Wittmann Report, into current Calgary Police Service culture.

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The Court also directed evidence from Toronto Police tasked with implementing the Iacobucci Report, in particular its recommendations on use of force. The Court directed evidence to be called as to the procedures utilized by Toronto Police Services with respect to recruit training relating to mental health of citizens under police investigation.

In response to the request made by the Court, the Court heard extensive evidence from Brian Willis, CEO of Winning Mind Training. Mr. Willis provided expert information to Justice Wittmann in the preparation of the Wittmann Report. Mr. Willis is the deputy executive director of the International Law Enforcement Educators and Trainers Association. Mr. Willis worked with Calgary Police Service for 25 years as a patrol officer, tactical officer, patrol supervisor and trainer. From 1995-2004 Mr. Willis was the head use of force trainer for Calgary Police overseeing officer safety, subject control tactics, incident command and emergency vehicle operations programs. On October 11, 2017, Mr. Willis was invited by the Honourable Justice Wittmann to a two-hour meeting with respect to Calgary Police use of force policy. It was the opinion of Mr. Willis as expressed to Justice Wittmann that while officers cannot be trained to discern specific mental health disorders, they can undergo training with respect to capacity to develop rapport with citizens in crisis as part of strategic communications skills. Mr. Willis identified Exhibits F7 and F8 as the CPS in-service recruit program entitled Strategic Communication and De-Escalation, and the Strategic Communication and De-Escalation Course taught to serving members of Calgary Police. Mr. Willis testified that it was essential to integrate in-service training to deliver ongoing professional development programs to in-service police members. This would include mandatory training with respect to de-escalation tactics. Mr. Willis explained that de-escalation is an overall philosophy with respect to modern policing. The application of force should be and is in fact “exceptionally rare” in the opinion of Mr. Willis. In addition to specific mandatory ongoing professional development for in-service officers, Mr. Willis was of the view that there must be continuing education programs to “train the trainers”. Mr. Willis recommended a 10-minute session a day at the beginning of each shift as a regular element of protocol. Mr. Willis recommended ongoing district training of in-service CPS officers, three to four times a year. Each of these ongoing training sessions would last for 45 minutes at a time, to ensure minimum disruption to other police duties. Mr. Willis recommended the teaching model which involves collaborative interactive training on an ongoing basis as opposed to “one time lectures”. Mr. Willis was of the view that skills with respect to communication and de- escalation need to be taught consistently and reinforced on a regular basis.

The Court heard testimony from Robert Hammel who provided important information to the Inquiry with respect to the structure of the organization of Calgary Police. At the top of the hierarchy is a critical incident commander who is tasked with overall responsibility for police activity in the City of Calgary. There are 10-12 critical incident commanders in the city. Beneath the critical incident commander is a duty inspector who sits at the real time operations centre. The duty inspector is responsible for police activities throughout the city, reporting to the critical incident commander. Beneath the duty inspector is the duty staff sergeant. There is a duty staff sergeant on duty at all times for the north and south of Calgary. The City of Calgary Police Service as a whole is a separated into 8 districts, following an incident command system. The critical incident commander on duty on the day in question was Inspector Larson. He did not arrive on the scene until 3:40 a.m.

It was the opinion of Mr. Willis that the City of Calgary requires more tactical team members than it presently has. This concern was echoed by the witness, Brian Lawrence, who testified later in the Inquiry. In cross-examination Mr. Willis agreed that the use of force policy enforced at the time of the incident with respect to Mr. Sommers required police to locate, isolate and contain a barricaded subject, with a gun. “The Priorities of Life” model is followed by Calgary Police in these cases. Victim safety is first. Public safety is second. CPS members is third. Subject safety is fourth.

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The Court heard evidence from Deputy Chief Raymond Robitaille. The extensive curriculum vitae of Deputy Chief Robitaille is Exhibit F9. It is the Court’s conclusion that Deputy Chief Robitaille is clearly an expert in connection with all aspects of police force operation and in particular the ongoing professional development required by in-service police officers. Deputy Chief Robitaille has extensive knowledge of the Chief Crowfoot Learning Centre, the curriculum for that centre, and the ongoing curriculum for professional development for police officers in three distinct “streams” – education, training and professional development. Deputy Chief Robitaille explained to the Court that within in the curriculum provided to police officers in- service, is a professional psychological services division which is separate, stand-alone division, reporting to Deputy Chief Robitaille. The division of psychological services is a stake holder responsible for creating curriculum for mental health issues as they pertain to policing. Members of this division are “subject matter experts, professionals”. Curriculum developed in the field of mental health issues has undergone a significant improvement as a consequence of police hiring of Stacey Ferland who has a Master’s Degree in Social Science. Deputy Chief Robitaille is familiar with the online learning system provided by Calgary Police Service to its members. Deputy Chief Robitaille testified that there is a PEAKS system which is an electronic platform for all police online learning. For example, online mental health training provided to police officers includes “pathways to housing”, “pathways to mental health”, and an “emotionally disturbed persons user guide”. The key criteria with respect to these online courses is the ongoing professional development of in-service police officers. In the Court’s view, these courses should be mandatory. Mandatory, ongoing professional development education is a key component of the recommendations contained in the Wittmann Report.

The Wittmann Report – Use of Force in the Calgary Police Service (Exhibit F10) is a comprehensive review of Calgary Police conducted by the Honourable Neil Wittmann, Q.C. for Chief Constable Roger Chaffin, CPS. Chief Constable Roger Chaffin requested the review in a letter of terms of reference dated May 16, 2017. The independent review of use of force by Calgary Police Service was requested:

“…to determine whether systemic drivers, gaps or opportunities can be identified that may increase public and officer safety and enhance public confidence in the Calgary Police Service.” (Extract from Executive Summary, the Wittmann Report at page XVIII)

The Wittmann Report is the most comprehensive review ever undertaken of CPS policies, procedures, practices and culture relating to the use of lethal force. The Report examined recruit training and continuing training provided to CPS members with respect to use of force, current use of force policies, police encounters with persons in crisis, including incidents involving individuals in a mental health crisis, police response to visible minorities and indigenous populations, with a focus on the training, critical thinking skills, planning, tools, and equipment required to best eliminate or “at least reduce the situations that cause officers to use lethal force” (The Wittmann Report, page XXIII). Many aspects of the Wittmann Report are of direct relevance to the frame of reference of the Inquiry with respect to the prevention of similar deaths by use of lethal force. The Court heard evidence from a member of the Wittmann Planning Team, Sarah Skinner. The Court also heard evidence from Staff Sergeant George Farrell from the Toronto Police College, section head of the incident response training. Staff Sergeant Farrell’s evidence was heard in the context of a similar report prepared by Justice Iacobucci for Toronto Police on the use of force (Iaocubbi Report, Exhibit F11, Binder 3, at Tab 76). The Court heard evidence from Staff Sergeant Cory Daley and Acting Superintendent Leah Evan Barber. Finally, the Court requested expert opinion evidence from Brian Lawrence of Elgin Security Consulting. Mr. Lawrence provided evidence in connection with his involvement in the preparation of the Wittmann Report and with respect to police use of force generally in North America.

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Sarah Skinner is a member of the CPS response team, independent review of police use of force, committee which is otherwise known as the Wittmann Portfolio Team. The Wittmann Portfolio Team is responsible for the monitoring and implementation of the 65 recommendations made in the Wittmann Report. The status of implementation by Calgary Police Service of the 65 recommendations in the Wittmann Report, is contained within a comprehensive document prepared by the Wittmann Portfolio Team as at October 10, 2019, Exhibit F11 (Binder 3 at tab 69). The Wittmann Report created a need for seven separate projects all within the operating umbrella of the Portfolio Team. The seven projects include strategic planning (recommendations 62 and 63); CCOC development programs (recommendations 9-17); mental health program (recommendations 37, 41-44); early intervention (recommendations 49. 57-61); patrol recognition (recommendations 55 and 56); senior officer patrol initiative (recommendation 52); and operational review (recommendation 36). Sarah Skinner testified before the fatality inquiry for an entire day. This witness confirmed that 21 of 65 recommendations made in the Wittmann Report have already been implemented. In addition, 25 of 65 recommendations are in active progress and being actively resourced or led in project management roles by the Portfolio Team. 13 of 65 recommendations are in progress led by other units within Calgary Police and 6 of 65 are considered closed (this latter term meaning that CPS accepts “the recommendation in principle but no further work is continuing or being planned” – Exhibit F11, Binder 3, tab 69 at page 1148). In the Court’s view, Ms. Skinner is a crucial member of the Portfolio Planning Team. Ms. Skinner has a Master’s Degree in conflict analysis and is currently a PhD candidate. The extent of Ms. Skinner’s knowledge with respect to Calgary Police core values, culture, use of force polices, and the Wittmann Report in general as it pertains to the complex process of implementing the Report, is crucially important to the future function of the Calgary Police Service. Ms. Skinner possess impressive knowledge with respect to many aspects concerning the process of implementation of recommendations with respect to police use of force and de- escalation practices. Ms. Skinner also provided important information to the Court with respect to the various models being considered with respect to the training of a crisis invention team including details of the Memphis Model which is currently in use in Hamilton, Ontario. Ms. Skinner explained to the Court that the Portfolio Team report at Exhibit F11, tab 69, is a “living document” which is subject to change and amendments when new members of the committee are appointed and new deputy chiefs take their positions. As the City of Calgary Police Service is undergoing a transition period with respect to appointments to these positions, Ms. Skinner explained that new leadership may development a further strategic plan and may exercise decisions to change the current implementation plan. Ms. Skinner explained that the use of force policy of Calgary Police is in the process of being updated. A draft revised Use of Force policy which is subject to future revisions, was entered as Exhibit F13 in the fatality inquiry.

Staff Sergeant Cory Daley provided extensive evidence to the Court in connection with key aspects of the implementation of the Wittmann Report recommendations as they pertain to use of force policy, use of force training for both recruit and service members, de-escalation practices and procedures, the de-escalation course curriculum, the front-line professional development program, the district officers training program and the comparative professional development program. Staff Sergeant Daley also reviewed Exhibit F13, the new proposed Use of Force policy in draft stage, subject to revision. Staff Sergeant Daley has eight district sergeants reporting directly to him. In turn, each of those eight district sergeants are responsible for implementing the training for the front-line officers with respect to the use of force protocol for in-service members. Staff Sergeant Daley testified that the primary focus of his work is first response front line officers. Staff Sergeant Daley is completely familiar with all use of force policies in the Calgary Police Service and is aware of the significant changes which are in draft form (Exhibit F13) with respect to the use of force policy as it pertains to de-escalation. Staff Sergeant Daley provided relevant evidence to the Court with respect to significant changes proposed in the draft Use of Force policy, updated as of November 19, 2019. The Court emphasizes that the policy is in a draft stage and subject to further revisions. Proposed changes to the current Use of Force policy include:

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1. A comprehensive definition of de-escalation to be defined as: “a range of verbal and non- verbal strategies and tactics used to lower the intensity of potentially volatile situations with the aim to reduce the necessity or level of force required for successful resolutions”. There are also new definitions for “person in crisis” and “strategy of threat assessment”. The draft policy recognizes that threat assessments will be used to develop a “prioritized working strategy and ultimately forms the basis on which the proportionality of the police response will be judged” (Draft policy, paragraph 3). 2. The draft policy for police Use of Force will also re-define guidelines for selecting the use of force options to define it as the force “that is necessary, reasonable and proportional to safely de-escalate the situation” (Draft policy, paragraph 4). 3. A key section to the draft policy is the added clause entitled De-Escalation. In the new draft policy de-escalation will be guided by the following paragraph:

De-escalation

1. The CPS promotes officers using de-escalation strategies and tactics, when safe and without compromising law enforcement priorities, to lower the intensity of potentially volatile situations and reduce the necessity or level of force required for a successful resolution.

2. De-escalation includes: a. Evaluation of the threat (person, object, or environmental factor); and b. Using verbal (communication, active listening, and empathy) and non-verbal strategies (time, distance, team work and self-regulation) to reduce the intensity of a situation.

3. Evaluate the threat and apply de-escalation techniques and tactics before resorting to force.

4. When evaluating the person, consider if non-compliance is a deliberate attempt to resist or an inability to comply based on other factors such as: a. Medical conditions; b. Mental impairment; c. Developmental disability; d. Physical limitation; e. Language barrier; f. Drug interaction; or; g. Behavioural crisis.

5. After the resolution, make detailed notes of: a. The subject’s behaviour, b. De-escalation tactic(s) used; c. Time, action imperative, position, communication, and assistance; and d. The type of force used (if any).

(Excerpt, Exhibit F13, draft policy, subject to revision)

Staff Sergeant Daley discussed the new de-escalation course curriculum now being developed. It involves engaging medical professionals and scenario training which will be presented to front line officers as part of the front-line professional development program. This training will be 60 hours and will be mandatory. The fact that the front-line professional development program will be mandatory is a key initiative.

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Staff Sergeant Daley is also involved in the district officer’s training program. As part of this program, Staff Sergeant Daley has reviewed the Wittmann Report and conducted an extensive review of police culture leading to the development of a business plan to implement the new front-line training. Staff Sergeant Daley indicated that a key problem in the past was the lack of budget for this education. Staff Sergeant Daley has now requested specific budget allocation for front-line professional development training of in-service officers which would include servicing the cost of location, equipment, retaining outside experts, and continuing development of the syllabus for training of front-line officers. In this Court’s view, it is absolutely critical to the successful implementation of the Wittmann Report that a specific budget be allocated to the continued work of the Wittmann Report including the committee specific education initiatives that are required to implement its recommendations.

The Court heard from Staff Sergeant George Farrell who is the section head of Incident Response Training with Toronto Police College. Staff Sergeant Farrell, together with six other sergeants and 41 constables, is responsible for the training of recruits and existing service members with respect to use of force options in Toronto. Staff Sergeant Farrell provided interesting, relevant, comparative evidence with respect to the program in place as a consequence of the Iacobucci Report, Exhibit F11, tab 76. The Iacobucci Report was prepared by the Honourable Frank Iacobucci for the Chief of Police William Blaire, in July 2014. The Report began in a similar manner to that of the Wittmann Report with a request by the Chief that an independent review be undertaken of the use of lethal force by TPS with particular focus on encounters between police and citizens in crisis. The Iacobucci Report gave rise to a series of recommendations which are in many respects similar to those in the Wittmann Report. The Iacobucci Report, by necessity, addresses a much larger police force than CPS. The Report was also issued in the context of a particular culture of the Toronto Police force. The Ontario Use of Force model (Exhibit F12), which is also included in the Wittmann Report, includes the key questions: Is it necessary? Is it reasonable? The Ontario Use of Force model also looks at the level of police decision making with respect to containment and communication with individuals in crisis. There was also specific attention in the Iacobucci Report to the question of what is called Stigma Training (Recommendation 15, Iacobucci Report, Exhibit F11, tab 76). This training assists police recruits and in-service officers to understand mental health issues impacting behaviour and teaches police empathy with respect to dealing with individuals in crisis. According to Staff Sergeant Farrell there is a mental health sub-committee which assists with training in this area. All recruits in Ontario have three months of training at the Ontario Police College and those recruits who join the Toronto Police force go to the Toronto Police College for an additional nine weeks. With respect to Toronto Police in-service training, there is mandatory Use of Force training of three days every twelve months for all in-service officers. Day one of the three days of training is a series of up to date classroom lecture, and days two and three deals with various scenarios and lectures with respect to de-escalation techniques. This training was undertaken in accordance with Recommendation 18 in the Iacobucci Report. Staff Sergeant Farrell indicated that throughout Toronto Police Service, there is “a focus on de-escalation tactics”. The Toronto Police force has also implemented Recommendations 21, 22 and 23 of the Iacobucci Report which include the showing of videos and presentations concerning mental health issues and the establishment of a mental health sub-committee on the police force. The mental health sub-committee works with professionals who have specific mental health expertise. Staff Sergeant Farrell agreed that the Use of Force model at page 106 of the Wittmann Report is adapted from the National Use of Force framework and is similar to the Ontario Use of Force model (Exhibit F12). It is important to note that the Toronto Police force number of officers and budget is much larger than that of the City of Calgary. Staff Sergeant Farrell noted that the budget is 1 billion, there are 4,900 officers and there is an Ontario Provincial Police College. Thus, the recommendations of the Iacobucci Report which were referred to in the Wittmann Report, must be considered in the context of the significant difference in size and budget between the Toronto Police Service and the Calgary Police Service.

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A key witness in the fatality inquiry was Leah Evan Barber, the Acting Superintendent with Calgary Police Service. In the Court’s view, the evidence of Acting Superintendent Barber, when viewed in the context of her 27 years of experience, education and knowledge, is material to the implementation of the recommendations of the Wittmann Report. Acting Superintendent Barber understands the importance of police proactive learning and education with respect to use of force, citizen mental health issues, communication with individuals in crisis, the mental health strategies for Calgary Police Service, in dealing with mental health issues of citizens who may come into contact with the justice system. Acting Superintendent Barber made one of the most important statements in the fatality inquiry when she said to the Court “We can’t police our way out of this”. Acting Superintendent Barber understands that proactive measures are required, along with extensive training and on the ground work, in advance of a crisis such as the one that developed with Ryan Sommers. It appears that under the direction of Acting Superintendent Barber that police have been engaged in active collaboration with Alberta Health Services to assist officers to understand more about individuals in crisis, to provide a resource for police when they encounter individuals with mental health issues and to assist with the development of mandatory training in this area. This significance of the work of Acting Superintendent Barber and her department cannot be underestimated. As she stated to the Court, “I am the owner of mental health strategy”. The Court agrees. The Court does recommend that the budget requirement of the department headed by Acting Superintendent Barber be provided in accordance with the Wittmann Report recommendations to ensure that future use of lethal force by police in interactions with citizens in distress is reduced to an absolute minimum.

In the course of the fatality inquiry, the Court heard evidence from an expert witness on the issue of use of police force. Chris Lawrence of Elgin Security Consultants Inc. provided opinion evidence to the inquiry in addition to the interview that he conducted with Justice Wittmann in the preparation of the Wittmann Report. Mr. Lawrence was qualified by the Court to give expert opinion evidence in connection with use of force by police in . Mr. Lawrence has an extensive curriculum vitae which includes years with force as a member of the tactical response unit, years at the Ontario Police College as a use of force instructor to other police officers and teaching at the Canadian Police Research Centre to provide specialized services in connection with Use of Force. Mr. Lawrence has testified over 60 times as an expert in the field of police Use of Force. (Mr. Lawrence’s CV is Exhibit F11 at tab 80.) Mr. Lawrence reviewed the transcript of the evidence of the responding police officers on the day of their interaction with Mr. Sommers. He also reviewed the Exhibits entered in the fatality inquiry. He summarized the general understanding which formed the basis of his expert opinion. Police were called to institutional housing, it was difficult to determine whether Mr. Sommers was inside or outside the housing complex. A diamond formation of officers proceeded upstairs to Mr. Sommers unit and a door knock was done. Officers took a position of cover in an alcove. Mr. Sommers came out of the residence brandishing a replica firearm held across the front of his body. He then turned and extended his arm, pointing the replica firearm at officers. At all material times, police believed that Mr. Sommers was in possession of a real firearm (handgun) as a replica is indistinguishable from a real handgun.

Mr. Lawrence opined that the police officers in this case were properly trained, that “when they believe their life or the life of another is imminently endangered by a subject, lethal force may be used to the extent necessary” (Expert opinion report, Exhibit F11, tab 80). In summary, Mr. Lawrence opined that the use of force in the case of Ryan Sommers was consistent with police force training across Canada. Mr. Lawrence examined the timeline with respect to the time of the pointing of the firearm by Mr. Sommers and the time of the discharge of a firearm by police, and opined that it was “a tie”. Mr. Lawrence informed the Court that police officers in this circumstance could not wait as they would then be behind the curve and never catch up with the actions of the individual possessing the firearm. Mr. Lawrence opined that in other jurisdictions such as Vancouver and Toronto, police have a tactical unit on duty, ready to respond to incidents

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like this, 24 hours a day, 7 days a week. The tactical unit in these cities, according to Mr. Lawrence, is on active duty, ready to respond. The tactical team, according to Mr. Lawrence, has a wider variety of equipment to use and a broader range of training than that provided to front-line officers. In other words, the tactical unit has access to listening devices which are extremely sensitive to allow members to hear into closed spaces, possession of less lethal kinetic impact weapons (ARWEN, stock rounds), ballistic shields and helmets, as well as robots and cameras. Mr. Lawrence was clear to say, however, that events would not have turned out differently even if a tactical unit had responded to the case of Mr. Sommers. Police on that night did not know Mr. Sommers precise location. There was no time lapse between Mr. Sommers pointing the firearm at officers and the officers firing of two shots in the direction of Mr. Sommers. The lack of police knowledge as to the precise location of the individual in possession of the firearm prevented police who responded from waiting for the services of a tactical unit (which was on call). Mr. Lawrence did emphasize to the Court that if Calgary Police adapted the practice of tactical unit members on duty 24/7/365 (as in Vancouver and Toronto), then members of the tactical unit would be dispatched to calls involving armed subjects and these units will have more training with respect to dealing with subjects who may have mental health issues. Tactical unit calls, according to Mr. Lawrence, are modeled towards an intervention rather than criminal enforcement. The training the tactical unit members have with respect to negotiations combined with their access to more sophisticated police equipment provides, in Mr. Lawrence’s opinion, a better opportunity to de-escalate situations involving a dispatch to calls with respect to armed subjects. Mr. Lawrence also opined that although this particular shooting could not have been prevented even if such a team had responded; nevertheless, in the future, 24/7 tactical units responding to calls like Mr. Sommers have the potential for a better outcome given their additional training and equipment. Mr. Lawrence advised that there is a very low tech step that could be taken by front-line officers when they encounter an individual who is known to be inside a contained space. Mr. Lawrence provided anecdotal evidence of a simple step undertaken by front-line police officers in Toronto when faced with a suspect in a contained area. A rope loop is placed over the doorknob of the door from the contained area which allows officers to control the opening of the door by holding the rope looped over the door knob in a taut fashion. This is anecdotal information provided to the Court by Mr. Lawrence. It is not part of his formal opinion report at tab 80, Exhibit F11.

The Court was impressed with Mr. Lawrence. His training is extensive. His education and experience with respect to instruction is extensive. He continues to maintain his level of knowledge through attendance at use of force education conferences in the United States (there are no regular use of force conference in Canada). Mr. Lawrence spoke about a conference which is hosted by the National Technical Officer’s Association in the United States. He also informed the Court about the International Law Enforcement Trainer’s Association based out of Chicago. Finally, there is a use of police force summit which occurred in December 3-5, 2019, sponsored by a law firm who specializes in this area of work in Uncasville, Connecticut. Mr. Lawrence was clear to say that education of this type is extremely helpful to keep abreast of developments with respect to training of front-line officers, recruits and tactical units. Finally, he indicated that he would recommend an overt policy that permits protracted time to police to resolve these types of incidents. He was of the opinion that the life and safety issues which are a part of extending time should take a priority over short-term inconvenience to the public.

Recommendations for the prevention of similar deaths:

The Court concludes that the police Use of Force in the case of Mr. Sommers could not have been prevented.

The Court agrees with submissions from counsel for Calgary Police and the Chief of Police. The Calgary Police have readily accepted and implemented many of the recommendations of the Wittmann Report. This Court recommends that the Minster support the implementation of Justice

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Wittmann’s recommendations with necessary budget funding in the future, in particular for mandatory police training. Implementation of all recommendations in the Wittmann Report will result in improved de-escalation techniques, increased police knowledge with respect to encounters with citizens in distress, and the probable reduction of use of lethal force by Calgary Police in the future.

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