The Death of John Joseph Harper
The Aboriginal Justice Implementation Commission
The Chase TOP
In the examination of the events surrounding the death of J.J. Harper, a number of interrelated issues arise. In the next three chapters we will deal with some of these issues in the order of occurrence of the events to which they are tied. We begin with issues related to the pursuit of Melvin Pruden. TOP
The Description of the Suspect TOP
To evaluate properly Const. Robert Cross account of events, particularly the basis on which he approached Harper that night, it is necessary to examine the source and the substance of police radio descriptions of the car-theft suspect. Those radio transmissions were taped in the radio room at the Public Safety Building and a transcript was entered into evidence at the Inquiry. By understanding the significance of those broadcast descriptions, we can begin to assess whether Cross had a reasonable basis to believe that Harper was the suspect whom police were seeking. It is important to remember that Pruden was wearing a grey jacket that night while Harper was wearing a black one.
The first description that went out over the police radio came from Hodgins when Pruden and Allan abandoned the stolen car. After she and Cross saw the two fleeing suspects, she broadcast the following: "Two males, dark clothing, my partners out on foot pursuit."
Clearly, therefore, Hodgins and Cross had seen the suspects sufficiently to conclude that they were males and to get at least a general impression of what they were wearing. Hodgins also acknowledged that she observed one to be taller than the other.
After Allan was apprehended by Cross, he was questioned by Cross and Hodgins. The transcript shows that the following description of Pruden then was transmitted:
Hodgins: Male, native ah black jacket, blue jeans.
Hodgins: This male is apparently approximately twenty-two years old. (Exhibit 9)
The source of this specific description is contentious. Allan, whose testimony we accept, said that he told Cross and Hodgins the nickname of the suspect was "Manny," but told them very little else:
A They asked me what henever asked me about nothing that much. They just asked me what he was wearing. I told them. "I dont know."
Q Did you tell them anything about the jacket that he was wearing?
Q Did they ask you his age?
Q And what did you tell them?
A I said in between 19 and 17.
Q Did they ask you whether or not he is a native person?
A I cant remember. (p. 268)
Allan told us that he did not remember what Pruden was wearing and supplied no specific information to Cross and Hodgins. However, the officers testified that Allan did give them specifics. By referring to his notes during his testimony, Cross related the interview with Allan like this:
"Question: What did the other guy look like?"
Q What was his response?
A "Answer: Hes a tall guy in his twenties wearing a black leather jacket and jeans."
My next question,
"Question: Do you know him?
My next question,
"Question: Is he native?
Answer: Yes." (p. 1423)
In her testimony before us, Hodgins backed up Cross account of the questioning. She could not explain why, if Allan had told them that the jacket was "black leather," she had not included "leather" in the description. Nor could she satisfactorily explain why, if Allan had said the suspect was "in his 20s," she used the age "22."
The final description of the suspects clothing transmitted over police radio came from Const. Richard Poneira, who was pursuing Pruden on foot:
Poneira: Hes going up on the dyke [sic], grey jacket, native.
Dispatch: All units hes on the dyke, grey jacket and pants. (Exhibit 9)
This was a correct description of the colour of Prudens jacket. However, it did not put an end to the matter. Cross testified that when he heard Poneiras description, he believed it did not match the description he had received from Allan. He said he was confused when he heard that the suspect had been apprehended:
A [T]he only information I received then on my radio was that the male was described as wearing a sweater jacket, which didnt match the description of what I was originally given. (p. 1427)
The transcript shows that no one had broadcast such a description. Nevertheless, Cross said that he recorded the discrepancy in descriptions in his notebook and began walking toward the yard on Gallagher Avenue where Pruden had been arrested. He said he wanted to make sure that the right person had been apprehended. On the way, as he crossed Logan Avenue, he observed a man walking east on Logan. Under cross-examination Cross said:
A He was wearing a black jacket. From the distance I was at, I could not determine whether it was leather or cloth.
Q When you came close to him, did you observe whether or not the jacket he was wearing was leather?
A I observed at that point it was a cloth jacket. (p. 1423)
If Cross and Hodgins are to be believed, Allan had told them that the suspect was wearing a black leather jacket. Harper was wearing a black jacket and was an Aboriginal male; in those respects he partially conformed to the description they broadcast. But in other major ways he did not. He was in his late 30s rather than in his 20s, and it must have been apparent that he had not been running hard to elude police. At any rate, Cross made the approach.
It appears that other officers may have attempted to bolster the credibility of Cross account by making their notes on the suspects description correspond with his. For instance, Constable Poneira testified that his notes indicated that the broadcast description of the suspect referred to a native male in his early 20s, wearing a black leather jacket. Oddly, Poneiras notes also recorded his description of Harper as a native male in his late 20s, wearing a black leather jacket. Harpers jacket was cloth and not leather.
Const. Grant Eakin also wrote in his notes that the broadcast description referred to a black leather jacket. Another officer, Const. William Isaac, took the extraordinary step of rewriting his whole notebook so that his notes would record the descriptions reference to a black jacket. We will have more to say on the issue of police notebooks in Chapter 5.
The broadcast description of the suspect and its subsequent interpretation in the notes of officers are a matter of great importance and concern. Cross said that he had been told by Allan that the suspect was wearing a black leather jacket and Hodgins transmitted a description to that effect, but did not refer to the jackets being leather. Cross said he approached Harper because he was wearing what appeared to be a black leather jacket. Other officers adopted "black leather" as part of their notes. Clearly, they did not obtain that description from the radio transmissions or from their own observations. We believe that the officers inserted the reference to "black leather jacket" in their notes to support Cross story. That is the only reasonable conclusion to draw.
We accept Allans evidence that he did not give Cross and Hodgins specific information on Prudens clothing. This suggests that Cross and Hodgins got a much better look at Allan and Pruden than they acknowledged, and that their radio description was indeed based on their own observations rather than on their questioning of Allan. It also suggests something else: in both their note-taking and their testimony at the inquest and at this Inquiry, several officers were less than truthful. This is a disturbing finding but it is one which we feel compelled to make. TOP
Officers Use of Guns TOP
From time to time police officers have cause to draw their weapons. The public understands it may be necessary when an officer is in danger or when potentially violent persons are being arrested or approached.
There may have been such a situation on March 9, 1988 when Melvin Pruden was being flushed from hiding. It would not have been surprising to us if one or more officers, in the course of searching for him, had their guns drawn. What we found disturbing was the succession of officers pointedly denying that any officers gun, except Cross, was drawn that night, even when there was clear evidence to the contrary.
Cross testified that it was during the struggle with Harper that his gun came out of its holster and that he did not have it drawn when he made his approach. We have to question whether the denials of other officers were intended simply to support Cross in his assertion that he did not have his gun drawn prior to his encounter with Harper. TOP
Constable Hodgins TOP
Allan testified that he observed Const. Kathryn Hodgins draw her revolver after hearing the shot. Hodgins admits that when she heard the shot, "It took me by surprise," and "I didnt know where exactly it was coming from." She immediately ran into the lane, shouting for Cross. It would be understandable for a lone officer, holding an accused in custody, upon hearing a gunshot and upon entering a dark alley, to have her revolver drawn. We would not criticize her for doing so. We believe she did have her gun drawn, yet she denied doing so.
It was apparent during the course of her testimony that the events of March 9 have affected Hodgins deeply. She testified to that fact, and spoke of the emotional and psychological devastation that followed that night. She had trouble performing her work and stated that what occurred at the inquest is beyond her recollection. Her doctor informed us in a letter that she has been diagnosed as suffering from a post-traumatic stress disorder.
While this is understandable and regrettable, it has impaired greatly the reliability of her testimony. In her appearance before us, Constable Hodgins recognized that some of her testimony conflicted with what she had said previously and with what other witnesses said. However, she persisted in stating that all the other versions (including her own at the inquest) were wrong and that she was now being accurate. We do not agree, nor do we think that her evidence is reliable.
Although Allans evidence at our hearings was not as detailed as what he gave at the inquest, we are satisfied that any differences are explained by the passage of time and the considerable distress he experienced at the scene of the shooting and subsequently.
We are well aware of the dangers inherent in accepting the testimony of persons involved in the commission of offences when they are called upon to testify as to the circumstances surrounding those offences. Generally, one might expect that such witnesses would be tempted to shade their testimony in order to put themselves in the best possible light and to shift the responsibility for illegal activity onto others. Having considered those caveats about accepting such evidence, we nonetheless feel we can accept the evidence of Allan on this issue. We can conclude only that Hodgins denied having her gun drawn to support the contention of other officers, including Cross, that they did not have their guns drawn. TOP
Constable Hampton TOP
Despite his statements to the contrary, we conclude that Const. Randy Hampton also had his revolver drawn that night. Melvin Pruden testified that he saw Hampton looking at him in the lane and testified that, "He was pointing a gun at me." Pruden gave a detailed description of Hampton holding his revolver with both hands extended in front of him as he said, "Stop or Ill shoot" or "Freeze or Ill shoot." When Pruden ran, he observed Hampton lower his revolver.
Hampton, on the other hand, testified that he never drew his revolver while he was walking down the back lane looking for Pruden, and said that the only object in his hands that night was his portable radio. It is clear he did have his radio in his hand, for there are several radio transmissions from him while he was on foot in the back lane. He said that he did not have his flashlight in his hand and that at no time that evening was his revolver drawn.
Testimony from other officers did not clarify the matter. Const. Grant Eakin said during his examination before us that when he saw Hampton he was sure that the officer was not holding a gun. Later, during cross-examination, Eakin conceded that he really couldnt see what Hampton had had in his hand, but remained adamant that he had not seen any officers that night with drawn revolvers. But that does not end the question of Hamptons gun.
When Pruden eluded Hampton, Poneira took over the chase. Hampton left the lane, ran west down to Blaine Street and across Logan Avenue.
A vehicle driven by Randy Houston was passing by on Logan Avenue between Winks Street and Blaine Street at the same time as Hampton crossed Logan. One of the two passengers in the car, Linda Morissette, testified that she observed an officer holding a revolver in the air while jogging across Logan Avenue between Electa Street and the railway tracks. The person she saw was only three to four car-lengths in front of her vehicle. Morissette was in the front seat with an unobstructed field of vision. The officer was holding the revolver in the air with the right hand, she said, and grasping the right wrist with the left hand. Hampton acknowledged that he was the officer Morissette had seen cross Logan, but again denied having his gun drawn.
Although Morissette was certain that she saw an officer with a gun drawn, she did express some uncertainty about the gender of that officer. At the inquest proceedings before Judge Enns, Morissette initially testified that she had observed a "guy" walking on the right side of the street as she proceeded west on Logan. When pressed on cross-examination, she stated that she thought the officer was female. Her confusion may have resulted from the darkness and the fact that male and female officers wear the same uniforms. That a witness may not be sure about all parts of her evidence is not surprising, for few people would be able to state with certainty what had occurred at all times during a particular evening, although they might be absolutely certain about one or two matters. One must be careful about such evidence, however, and accept it only after carefully considering all other factors, including whether the witness recollection is confirmed by any other evidence.
We found Morissette to be an honest witness and we believe what she said was essentially true. The fact that Pruden and at least one other witness also testified to observing an officer with a revolver drawn in that area adds credence to Morissettes evidence. That other witness was Michael Tymchuk, who was driving home from work shortly after 2:30 a.m., when he stopped at a stop sign at Logan Avenue and Weston Street. There he observed a police officer, whom we believe to have been Hampton, with his back to him, standing on the north sidewalk of Logan, across the street from him. The officer was leaning over a fence with his hands spread out. Tymchuk described him as having dark hair with clothing slightly open and jacket lifted up a bit on the right side. Tymchuk was at the intersection for approximately 30 seconds and noticed the officer turn his head every once in a while, as if he were trying to look down the side of the house of which he was standing in front. Tymchuk also noticed a radio on the left side on the officers belt. He explained in detail how he saw a revolver in the officers hand, resting on the fence. The officers hand and revolver were raised to a vertical position as the officer turned his head. There was no doubt in Tymchuks mind that the officer had his revolver drawn.
When Tymchuk heard of the shooting the next afternoon, he concluded that what he had observed was connected to the shooting but did not consider his observations important. Between two weeks and a month later he telephoned the police department and spoke to someone, whose name he could not recall, who informed him that, in his words, "There are a number of people that have information. If you feel that you really want to say something, contact some investigators the next day." He was not asked for, nor did he disclose, his name. Because of the dismissive response and his uncertainty about the significance of his observations, he did not bother calling back. Tymchuks name, address and telephone number should have been taken and at least forwarded to the appropriate investigators, but they were not.
After seeing the Inquiry hearings on television, Tymchuk recognized the importance of his evidence. He contacted his lawyer, who in turn contacted Commission counsel. Tymchuk was interviewed and, within a short time, testified before us.
Tymchuk was absolutely certain about what he had observed. He stated clearly, and despite intensive cross-examination, that a police officer was carrying a revolver that night. We accept his evidence.
We also heard other, less conclusive testimony about the matter of drawn firearms. Jeff Bedosky, who had driven by the scene before and after the shooting, told a Winnipeg police sergeant on the day of the shooting that he had seen an officer carrying what may have been either a gun or a radio. At the inquest he did not mention a gun and cross-examination on the point was disallowed.
Allan, Pruden, Morissette and Tymchuk all testified that they saw an officer with a drawn revolver that night. Each of these witnesses was reliable on this matter and the totality of their evidence leads inexorably to the conclusion that Hampton and Hodgins had drawn their guns and were carrying them that night.
We found Hamptons denials unconvincing. For example, he said:
In a situation like that, for me to have my gun out, walking down the lane, in any situations as Ive stated previous, if thats a citizen, Im in hot water. If thats my partner, Ill tell you, youre not going to have too many other partners on the police department, if you come around a corner with your gun sticking out in somebodys face. Thirdly, if its a suspect, Im not going into the back of a yard, looking around corners, where that person can hear me jingling down the street with 15 pounds of equipment, Im not walking into that back yard with him knowing where I am, I have no idea where he is, with my gun out because all it takes is a bump, a push, it takes a person thats a little bigger, Im not huge, and a person thats a little bigger than me, and my guns gone. (p. 649) TOP
Winnipeg Police Policy on Firearm Use TOP
Constable Hampton testified that it is not permissible for officers to draw their weapons and threaten to shoot a fleeing suspect. He testified that to have a revolver drawn and yell "freeze" would be unacceptable conduct and there would be adverse consequences if an officer pointed his or her gun without due cause.
This belief suggests one possible motive for denying he had his revolver drawn. As Judge Enns stated in his report:
The following factors have lead [sic] me to the conclusion that both the allegations of racial slurs and the allegations of drawn revolvers are not credible:...
(e) In the absence of any suggestion of an armed suspect, armed robbery or the like, and especially after [Allan], whom Constable Hodgins took to be even younger than 14 or 15 years, it seems very unlikely that police would be chasing young, unarmed boys with drawn revolvers, in direct contravention of the stated guidelines for use of their revolvers. (Exhibit 3, p. 1314)
Police policy about the use of firearms is less straightforward than Judge Enns suggested. Staff Sgt. Menno Zacharias, who was in charge of training police recruits, stated there was no clear policy with respect to the appropriateness of an officers drawing his or her revolver. In his opinion, any officer who drew his or her gun when searching for a suspect in a darkened back lane would be justified.
Zacharias told us that officers receive seven hours of basic training on the handling and authorized use of guns. He testified:
Q Are recruits instructed on when it is and is not permissible to draw a firearm in the course of their duties as opposed to actually using, firing the handgun in the course of duties?
A Yes, theyre certainly given general guidelines in that area. We dont expect or we dont want members of the department to be drawing their firearms indiscriminately in situations where it would be unwarranted. But by the same token, we dont ever want to leave our people with the impression that they cannot draw the gun if they feel that in their judgment its necessary to do so.
So were walking a very fine line there in terms of saying, "In this situation or in these ten situations you can. In these ten you cant", so we dont even attempt to do that. What we do instead is give them a basic guideline and instruct them to use their judgment, bearing in mind that theyre going to have to justify their actions at some point in time. If they perhaps didnt do the right thing, theyre going to have to justify it. (p. 265455)
He testified that an officer in the position of pursuing a suspect in a stolen car and not knowing if the suspect is armed is justified in having his or her revolver drawn, "because there is a perceived danger to the officer."
All officers are provided with a card which contains guidelines for the use of firearms:
GUIDELINE FOR USE OF FIREARMS
When the Police Officers life is in danger.
When the life of another person is in danger.
If the Police Officer is in danger of grievous bodily harm.
If another person is in danger of grievous bodily harm.
ANY USE OF A FIREARM MAY REQUIRE JUSTIFICATION
FIREARMS SHALL NOT BE USED
Firearms shall not be used to stop a fleeing person.
Firearms shall not be used to immobilize a fleeing vehicle.
Warning shots must NOT be fired.
Firearms shall not be used when there is a danger to innocent bystanders.
ANY DISCHARGE OF A FIREARM OTHER THAN DURING TRAINING MUST BE REPORTED IN WRITING TO THE CHIEF OF POLICE BEFORE COMPLETION OF TOUR OF DUTY. (Exhibit 22)
There is clearly a lack of monitoring of when and why officers draw their guns. Officers do not have to report the fact that they draw their guns. Zacharias testified,
I dont believe thats a major concern and the reason I say that, our experience has been that members of the Winnipeg Police Department have used their firearms judiciously. They havent been abusing their use of the firearm and we havent had a need to monitor it. (p. 2657)
Zacharias testified that he would not be concerned if it were found that Hampton did point his gun at Pruden and say, "Police, freeze."
Q The Commissioners have also heard ... from a civilian witness, indeed the suspect that was hiding himself, that he stepped out momentarily to show himself to a single police constable who stopped in a stance, pointed his service revolver at him and said words to the effect of, "Police, freeze," or "Police, stop." If in fact that occurred, in your opinion as a training officer, was the constable justified in handling the situation in that manner?
A I would have no concern about that approach at all.
Q Would you tell the Commissioners why that is, sir?
A What the individual I believe is doing is hes protecting himself while at no time endangering the life of the suspect. What would happen in that type of a scenario is that the officer in all likelihood would, as you say, instruct the individual to stop. If the individual stopped, he would probably instruct the individual to go into one of the positions where we would search him. The officer would put his gun away, he would handcuff the individual and he would search him. What Im suggesting is there is no danger to the suspect and the officer has properly looked after his own safety. (p. 2659)
When asked if Cross would have been justified in approaching Harper with his gun drawn, Zacharias replied, "I wouldnt have any great difficulty with a situation where he had his gun drawn." He went on:
[T]he fact that he is a suspect, the fact that a vehicle ... had been stolen, there was a chase, people fled the scene and when youre dealing with a potential suspect in a crime you have no knowledge in many cases of whether they are armed, whether theyre unarmed, how theyre likely to react.... My perception of having the gun drawn in this instance might well be having the gun drawn and down at his side, which I dont think is an overly aggressive pose under these circumstances, and in a situation where the scenario runs its normal course, there would be no problem with that. (p. 266364)
We disagree with Zacharias if he meant to suggest that it is reasonable for a police officer to have his or her gun drawn when approaching a citizen walking along a street. Such conduct is not an acceptable use of police power. TOP
There may have been some justification for Hampton to have drawn his gun while searching for the suspect in the back lane. He had no idea whether the suspect was armed and no bystanders were in immediate danger. The same is true of Hodgins. Having heard a shot, she proceeded down the back lane looking for her partner. The lane was dark and she did not know who had fired the shot. Her partner was not responding. She was justified in having the gun drawn and at the ready.
However, there was no excuse for Hampton to keep his gun drawn once he had seen Pruden was unarmed and was running away. He was not in danger and could not use his gun to stop a fleeing suspect. We believe, as well, that Zacharias was wrong to suggest that Cross would have been entitled to approach Harper with his gun drawn. The information available to Cross at that time simply would not have justified such an act. The fact that the officer in charge of training thinks otherwise causes us considerable concern.
While service revolvers are necessary in some circumstances to protect police officers and citizens, the public is entitled to expect that they will be handled safely. To avoid the improper use of revolvers, the training of police officers in the use of weapons must, in our opinion, be enhanced to give greater guidance to officers. Officers must receive complete training on weapons safety and handling procedures.
We considered recommending that Winnipeg police officers be required to make a report every time a weapon is drawn. We have not done so in view of the tremendous paperwork such reporting would entail.
Of greater concern to us is the lack of candor of some Winnipeg police officers. We are very disturbed at their eagerness to deny they drew their weapons, particularly when the evidence shows otherwise. We heard evidence to indicate that this police predisposition to deny the use of weapons was not limited to the night of March 9, 1988.
When Constable Spryszak was asked during his testimony if he had ever run down a city street with his gun drawn, he answered, "No." When asked to reconsider his answer, he again said without hesitation, "No." A television videotape then was played of an unrelated incident in April 1988, showing Spryszak running down a city street with his gun drawn. When asked to explain his previous denial, Spryszak shrugged his shoulders and suggested that he wasnt "running," only "jogging."
Spryszak seemed surprised at the videotape showing him running down a street with his gun drawn. Perhaps he didnt know it existed, and was surprised at being caught so easily at giving what is, at best, inaccurate testimony. Perhaps, as well, he simply had no recollection of his having done so. That, however, is a difficult conclusion to reach when we are considering the evidence of a police officer with almost 15 years of experience. Undoubtedly, he was aware as well that having a gun drawn had become an issue at both the inquest and the Inquiry.
We are aware that there are things some people will deny despite overwhelming evidence, because they feel that they are being asked to admit that they did something wrong. Whether what they did actually was wrong is irrelevant. It is the suggestion that it was wrong which brings about the denial. It is as though it is easier to deny the existence of an event than to attempt to justify it. It is our conclusion that the evidence of both Hampton and Spryszak falls into this category. Despite Zacharias assurance that having a revolver drawn was acceptable in the circumstances, Hampton chose to deny that he had done so, apparently in the belief that such an admission would have placed him and perhaps other officers in the wrong light. It would seem that Hampton felt he would be failing in his role to protect the department and his fellow officers if he admitted to having his gun drawn. Hampton and Spryszak were not aware there was evidence to contradict their assertions.
If Hampton had admitted readily that he had drawn his revolver that evening, that might have been the end of the matter. Having his gun drawn does not suggest Cross did. However, the fact that he and Hodgins so strongly denied having done so suggests to us that Hampton and others were determined to portray the department, and Cross in particular, in the best possible light. TOP
|Manitoba Government Home Page||
Back to Table of Contents