A former police officer and public safety expert who reviewed the actions of a Victoria police officer who fatally shot a woman on Christmas Day 2019 with a “less lethal” weapon told a public hearing Wednesday he believed he would have fired the same shots in the officer’s position.
Michael Massine, a self-employed public-safety expert who previously worked on the Greater Victoria Emergency Response Team and as an officer with the Victoria Police Department, said he found then-Const. Ron Kirkwood took a “very sound, measured approach” in deciding to fire an ARWEN, considered a “less lethal” weapon than a firearm, at Lisa Rauch after she shut herself in a unit of a Pandora Avenue supportive housing facility that was on fire.
“I can’t find any fault, really,” Massine said.
Massine, who has been qualified in B.C. provincial court as an expert on use of force, testified Wednesday at a public hearing held by the Office of the Police Complaint Commissioner into the actions of Kirkwood in Rauch’s death. The 43-year-old died of blunt-force head injuries after being shot in the head by police using an ARWEN weapon.
Training for the ARWEN dictates that the 78-gram baton projectiles are not be aimed at the head, clavicle or neck unless the officer intends to use the weapon as lethal force and that officers must have a clear line of sight to ensure they don’t hit a vulnerable part of the body.
Kirkwood fired three rounds into the smoky room, mistakenly believing he was aiming at Rauch’s torso.
Adjudicator Wally Oppal, a retired judge and former B.C. attorney general, is presiding over the hearing to determine whether Kirkwood committed misconduct under the Police Act in relation to Rauch’s death.
Kirkwood, now a VicPD sergeant, faces allegations of abuse of authority in relation to firing the ARWEN gun at Rauch and neglect of duty in connection with his lack of documentation of the fatal shooting.
If Oppal determines the allegations are substantiated, he will determine appropriate disciplinary measures. His decision is considered final and conclusive. He can also make recommendations to the police chief or police board on changes in policy or practice.
Bradley Hickford, counsel for the public hearing, asked Massine if, given his experience as an officer and his education, he would have fired the ARWEN gun in Kirkwood’s position.
“I believe I would have,” Massine replied. He said that decision was based on accounts he had read of the event by Kirkwood and other officers present.
Massine called the incident “kind of a no-win situation.”
“These things don’t happen in a vacuum and you know, you can you can look back with the benefit of hindsight about what you could have done differently and I think every officer would do that, but I, I look at this and I read the very sound, measured approach to resolving the situation with what I believe would be the least amount of force necessary,” he said.
Massine described use-of-force practices as set out in a National Use of Force Framework. The response of officers in any situation depends on the behaviour of the person they’re dealing with, he said. That behaviour is broken into five categories in the framework: co-operative, passive resistance, active resistance, assaultive, and grievous bodily harm or death.
Lethal force can be used when a person exhibits actions that an officer “reasonably believes are intended to, or likely to cause grievous bodily harm or death to any person,” according to the framework.
The fact that Rauch was reported to have a knife, even if officers never saw her with a knife, indicated her actions could lead to grievous bodily harm or death, he said.
“You can’t erase the fact that they once had the knife,” Massine said.
A computer-aided dispatch entered into evidence that contains a summarized version of communication between officers while responding to the call shows lethal force was authorized if Rauch exited the unit with a weapon.
The fire also posed a threat to officers and others in the building, and police had the added responsibility of ensuring the safety of firefighters who were directly behind officers at the door of the apartment, Massine said.
Firefighters have testified that the fire was extinguished before Kirkwood fired the ARWEN. The window and door of the unit was open and smoke was dissipating, said Chris Considine, counsel for the police complaint commissioner.
“Wouldn’t you have thought that that’s a time to reassess as to whether or not to go in at that point, or to step back and contain and let the smoke dissipate before going in?” he asked.
Massine said retreating and reassessing is an option, but Kirkwood’s decision to fire was reasonable in the circumstances.
Kirkwood is expected to testify today.
