A Victoria police officer was simply following police protocol to resolve a "dangerous and unprecedented" situation, according to his lawyer's final arguments in a public hearing into his conduct from a December 2019 standoff.
The hearing into Const. Ron Kirkwood's use-of-force in the death of 43-year-old Lisa Rauch partially wrapped up on Wednesday (July 10), concluding arguments on whether his use of force constituted professional misconduct.
A second hearing is now scheduled in September to determine if Kirkwood was entitled to invoke his charter rights to avoid taking notes or making a statement following the woman's death, or if this constitutes a dereliction of duty. The results from that hearing could have broad implications for policing in B.C. as the law is not settled on this matter.
Rauch had barricaded herself in a supportive housing unit on Pandora Avenue on Christmas Day of 2019, allegedly high on methamphetamine and wielding a knife. After a lengthy standoff, police and firefighters entered the unit when they saw smoke coming from the window. Kirkwood shot Rauch with an ARWEN weapon, which fires plastic, barrel-shaped projectiles.
The Office of the Police Complaint Commissioner (OPCC) hearing is being held at the request of Rauch’s family and follows investigations by the Independent Investigations Office of B.C. (IIO) and the OPCC, which both cleared Kirkwood of wrongdoing.
In closing submissions, Kirkwood's counsel, Kevin Woodall, said that according to expert testimony, the officer's firing of a "less lethal" projectile at Rauch was "consistent with policies regarding the use of force generally, and was consistent with generally accepted (emergency response team) tactics in a Canadian policing environment."
Despite Woodall arguing his client "did not commit any professional misconduct," Chris Considine, who works as counsel for the OPCC and is a neutral party in the hearing, raised several concerns in his own closing statement.
"The question is when he fired that ARWEN in those circumstances — at the time he fired, was it reckless," Considine said. "Kirkwood decided to deploy three ARWEN rounds towards Miss Rauch without clearly seeing her and without issuing any verbal commands."
Note-taking issue to be revisited in September, decision could have broad implications
Though testimony is finished on whether Kirkwood's use of force was appropriate, a separate hearing has now been scheduled in September to look at whether Kirkwood committed dereliction of duty by not taking fulsome notes after the incident.
Because he could have been under investigation as a result of Rauch's death, he invoked his charter rights and chose not to make a statement that could potentially be used against him, should he be charged with manslaughter or murder.
This is common in cases involving police-involved deaths or serious injuries, but the law is murky on the topic, creating confusion for police forces across B.C.
When officers delay making statements it often then causes long delays in investigations and inquests — which is what happened in this case as the hearing is now being heard almost five years after the fact.
Depending on what recommendations are made by adjudicator Wally Oppal — a former B.C. Supreme Court Justice and former B.C. attorney general — the result could have broad implications.
Because of that possibility, a lawyer working for the IIO made a last-minute submission on the note-taking issue that meant each lawyer would need to revisit arguments on that subject. As the main watchdog charged with investigating police-involved death's and serious injuries, the IIO has a major interest in what recommendations come out of this hearing.
With everything that is at stake, an agreement was made between the various lawyers involved to separate the note-taking issue and hold a hearing on that in September, so the use-of-force issue could be resolved and provide some closure for the family.
Once the September hearing conclude, the adjudicator will deliver a verdict on both the use-of-force and note-taking issues, and provide any recommendations he sees fit.
