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Cops Gone Wild: R. v. Letkeman- April Lount

Introduction


According to the CBC investigation Deadly Force, a total of five officers have been convicted in proceedings stemming out of police involved fatalities in Canada from the year 2000 to July 2020.1 The investigation accounts for a total of 554 police involved fatalities since 2000, giving the impression of either a near perfect police regime or an imperfect legal system. In order to approach this discrepancy, I will look at the analysis and legal principles at play in the criminal cases stemming out of police involved fatalities. R. v. Letkeman found Constable Abram Letkeman guilty of criminal negligence causing bodily harm, and while this case is a good example of the legal principles engaged for officers who use lethal force, it is the gaps in the legal analysis that speak the loudest.2


Charges and Relevant Principles


Letkeman was charged with six Criminal Code offences, comprising three driving offences and three shooting offences. The driving offences include Criminal Negligence Causing Bodily Harm (s. 221), Dangerous Driving Causing Bodily Harm (s. 249(3)), and Dangerous Driving (s. 249(1)(a)).3 The shooting offences include Manslaughter (s.236(a)), Criminal Negligence Causing Death (s. 220(a)), and Discharging Firearm with Intent knowing or being reckless that people were in a motor vehicle (s. 244.2(1)).4 Court analysis focuses primarily on s. 25 of the Criminal Code, in which there are provisions protecting peace officers in the execution of their duties. The applicable elements of s. 25 are:

25(1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law . . .

(b) as a peace officer ... is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose. . .

25(3) ... a person is not justified for the purposes of subsection (1) in using force that is intended or is likely to cause death or grievous bodily harm unless the person believes on reasonable grounds that it is necessary for the self-preservation of the person ... from death or grievous bodily harm.5


Additionally, s. 26 states that anyone who is authorized to use force, but uses excessive force, is criminally responsible for the nature and quality of such excessive force.6 Importantly, use of force is not to be judged against the standard of perfection, but on a subject-objective standard.7 Meaning, determining reasonable force will be based on (1) the officer’s “subjective perception of the degree of violence” that is a threat, (2) whether that perception is reasonable, and (3) “whether his use of force was proportional.”8

Facts


The relevant facts of the incident are detailed, though fairly straightforward. On November 21st , 2015, Letkeman was on duty in Thompson when at 2:00 a.m. he observed an impaired driver in a Jeep with four passengers. He radioed, “201, impaired driver, parking lot of Mystery Lake Hotel, fail to stop.”9 At 2:01 a.m. Letkeman confirmed that he was in pursuit, and while he reported the manner in which the vehicle was driving, he did not report that he had intentionally, and against police procedure, collided with the Jeep in an attempt to stop it, sustaining significant damage to the police cruiser.10 Communications continued via radio as he followed the Jeep onto an ATV trail, and at 2:04 a.m. he called in yelling, “Shots fired, shots fired!”11 What he failed to report within that time was that he had, again, intentionally collided with the Jeep. Letkeman testified later that the second collision occurred because he was trying to box in the Jeep, but at the last moment the Jeep moved and he accidentally hit the vehicle.12 A collision expert found that in fact the Jeep was stationary when it was hit by the police cruiser, evidenced by what was effectively a stamp, reading “75 R1” from the Jeep’s tire on the police bumper.13 Therefore, “the Jeep tire must have been stationary at the point of impact as there were no scuffs indicating tire movement.”14 Letkeman hit the Jeep with enough force to break a passenger’s pelvis, “rotate the Jeep almost 90 degrees;” cause a door to the Jeep to fly open, from which items flew out; and buckle a passenger door so that it could not be opened.15 “According to exhibits, the cruiser went almost another two car lengths before it stopped.”16 Expert evidence classified this as lethal force.17 Letkeman then got out of his vehicle to approach the Jeep on foot, at which point he says the Jeep advanced towards him, a fact contested by the surviving passengers, apparently rolling over his foot.18 Somewhere within the moment of exiting his police cruiser Letkeman dispensed 11 rounds into the vehicle.19 Experts were not able to deduce exactly from what distance the shots were fired nor the pattern of their expenditure.20 A total of 23 seconds had elapsed from the time he pulled onto the ATV trail to when he called in the shots. The driver was hit nine times and died. The same passenger with a broken pelvis was also shot, but survived.21 The driver was found to have a blood alcohol concentration of .19.22 From the first radio until the last, 4 minutes and 18 seconds elapsed.23


Justice Martin’s analysis goes over the driving violations in detail, weighing in expert testimony to give shape to the evidence. Martin is systematic, and finding that the pursuit was a “continuous” action, registers a single conviction for criminal negligence causing bodily harm.24 The driving charges are not the point of concern with this case. The analysis drastically changes when looking at the shooting offences, all of which were dismissed. To begin, Martin points out critical issues in approaching the shooting offences, namely, that because the passengers were intoxicated the “only possibly sufficient or reliable evidence of how and why the shooting happened” is Letkeman’s account.25 Also, at its core, the shooting incident was a result of “a series of poor policing decisions, blunders really, [in which] Cst. Letkeman put himself in a position where, by his account, he had to use lethal force.”26 So, while the vehicle does from the evidence appear to have advanced towards him, the circumstance in which it happened was “officer-generated jeopardy.”27 Ultimately Martin found that the lethal use of force was justified under s. 26(3), and therefore he was not convicted for any of the shooting offences.


At first reading of the case, what is most readily striking is the amount of analysis that is devoted to the driving offences compared to the shooting offences. In total, 32 paragraphs of are dedicated to working through the driving offences, whereas 13 address the shooting offences. While Martin is clear that Letkeman created the danger himself, there isn’t any further consideration for how or if this should affect the outcome of the decision. There is an analytical jump from framing the issues associated with the case to arriving at “reasonable doubt that the shooting was not justified in accordance with s. 25(3).”28 The issue is not so much Martin’s decision as it is the lack of analysis that gives rise to uncertainties concerning the scope of s. 25(3).


What if you are being unduly targeted by a police officer? We know that resisting arrest is a criminal offence under s. 129, but what if the use of force is so clearly out of bounds with the offence that your life appears to be under threat? The driver of the Jeep did not stop for the police officer. However, considering their perspective, the facts suggest that it would be justifiable to think this police officer was violently targeting them. The manner and speed in which the incident escalated likely created undue fear in the driver. It is not unlikely that this resulted in the alleged acceleration. Even if the driver did in fact accelerate towards Letkeman, the vehicle was rammed with such force in the second collision that the fact scenario reads more like a scene from Grand Theft Auto. It is likely that the driver felt it was critical to get away from this officer.


What’s more, this was not the first time officer Letkeman had behaved this way. In 2011 Letkeman was reprimanded for a similar situation, in which he continued a chase of a suspected drunk driver against the direct order of his superior, “who determined the risk of a pursuit ending badly was greater than the risk of stopping the pursuit and letting the impaired driver continue.”29 He pursued the vehicle at high speeds until it rolled off the highway, resulting in injuries.30 Considering Letkeman’s experience, it is likely that he did not report the collisions because he was aware that he would be advised to discontinue the chase.


In Letkeman’s sentencing, Martin suggests that this may have been a situation of a “rogue officer.”31 However, the potential legal implications of this are not considered. The scope of s. 25(3) is left unquestioned, thereby inferring its supremacy. It is believable that Letkeman’s life was at risk, and as such, he is entitled to protect himself. The question is, does s. 25(3) gives officers carte-blanche in terms of criminal proceedings to use lethal force regardless of the situation they create? Should s. 25(3) protect rogue officers? Section 26 would suggest that it does not, but the caselaw says differently. Letkeman engaged in a series of quickly escalating and violent measures that by all accounts were well outside the bounds of police procedure. Letkeman was simply not behaving as a police officer. While his shooting is ultimately justified in the critical moment where his life was at risk, what are the rights of civilians that feel they are being unduly targeted by police? This gives rise to ancillary questions, such as, given the rise in awareness of police violence directed towards marginalized peoples, how are civilians to react when 29 Supra note 17 at para 41. 30 Ibid. 31 Ibid at para 38. confronted with police officers using excessive force? Can they protect themselves? Section 26 is supposed to guard against this threat, but while it is inactive, how does this effect the First Nations people that were passengers in the Jeep, especially given Canada’s adversarial policing history with Indigenous peoples? Did this inform the driver’s choice to accelerate towards the officer? These questions remain unanswered.


Justice Martin’s conclusion to the shooting offences leaves similar gaps. Martin says he has “reasonable doubt that the officer would have put himself in that spot if he thought he would have to shoot into the Jeep to save his life,” which seems like an asymmetrical consideration compared to the fact he had just previously used lethal force to ram into the stationary vehicle.32 He then follows that the driver’s actions “could not reasonably have been anticipated,” a statement which I would wholly reject given the violence they had just incurred.33 All in all, the situation is essentially a series of errors amounting to such a danger that triggers the protection of s. 25(3) to killing a man. At this moment I would encourage you, the reader, to hold out your hand into a pretend gun and pull the pretend trigger 11 times. Consider that action as immediately subsequent to the collision that happened seconds earlier.


Conclusion


In sum, s. 25(3) exists to imbue officers with the right to protect themselves. Similarly, police procedure exists as protection to both officers and citizens alike. When all else fails, s. 26 is meant to protect the public against the illegitimate use of police power. In this case, s. 26, while mentioned in the introduction to the case, remains silent in the analysis. Given the few charges that are laid against police, there are limited opportunities to see the judicial balancing of s. 25(3) with s. 26. While the number of criminal proceedings stemming out of police involved fatalities may suggest few wrongdoings, R. v. Letkeman reveals that s. 25(3) has a broad scope capable of encompassing a vast number of police errors, running the risk of overprotecting police powers at the cost of civilian protection.




Endnotes...........................

1 Jacques Marcoux & Katie Nicholson, “Fatal Police Encounters”, CBC (2020), online: < https://newsinteractives.cbc.ca/fatalpoliceencounters/>

2 R v Letkeman, 2019 MBQB 124.

3 Ibid at para 2.

4 Ibid

5 Criminal Code, 2001, c 32, s 25(3).

6 Criminal Code, RS 1985, c C-34, s 26.

7 Supra note 2, at para 41

8 Ibid at para 42.

9 Ibid at para 10

10 Ibid at para 12

11 Ibid at para 13.

12 Ibid at para 62.

13 Ibid at para 64.

14 Ibid at para 64.

15 Ibid at para 64

16 Ibid at para 69.

17 R v. Letkeman, 2020 MBQB 12 at para 33.

18 Aidan Geary, “Victim’s friends testify as manslaughter trial begins for Mountie charged in 2015 Thompson shooting”, CBC, 17 June 2019, online: < https://www.cbc.ca/news/canada/manitoba/thompson-rcmp-officercharged-fatal-shooting-1.5176811>. 19 Supra note 2 at para 29.

20 Ibid at para 29.

21 Ibid at para 1.

22 Ibid at para 28.

23 Ibid at para 16.

24 Ibid at para 77.

25 Ibid at para 81.

26 Ibid at para 85.

27 Ibid at para 86.

28 Ibid at para 91.

29 Supra note 17 at para 41.

30 Ibid.

31 Ibid at para 38.

32 Ibid at para 90.

33 Ibid.

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