VPD officer says he still considered Myles Gray a threat at death hearing

A second Vancouver Police officer involved in Myles Gray’s death testified at the public hearing into the case. Const. Beau Spencer, questioned by his own lawyer, Claire Hatcher, said he and his partner, Const. Derek Cain, raced to a call on the Vancouver-Burnaby border in August 2015. They were the last of the seven officers involved to arrive, reaching a secluded backyard where five colleagues were trying to subdue Gray.

Spencer said Gray was face down, with his legs bound by a device police call a hobble. Spencer moved to Gray’s right side and tried to pull his arm behind his back so he could be handcuffed. He described Gray as the strongest person he had ever encountered and said, “I experienced strength I’ve never experienced before in my life.” Spencer testified that he punched Gray in the shoulder three or four times as hard as he could to gain compliance, but the blows had little or no effect. Gray, he said, “appeared to be completely immune to pain, actually.”

The officers eventually cuffed Gray’s hands behind his back. Spencer said he then noticed Gray’s breathing was laboured and that he seemed to be losing consciousness, so he rolled him onto his side into what is commonly called the recovery position. Gray later came to and began thrashing. Although Gray’s hands were cuffed behind his back and his legs were bound with the hobble, Spencer said he put a knee on Gray’s shoulder and used his body weight to hold him down. “If he got up at that point, even hobbled, I still found him to be a threat,” Spencer testified. He said a person restrained that way could potentially manoeuvre cuffed hands from back to front and loosen the hobble.

Ian Donaldson, the lawyer representing Gray’s family at the hearing, believes Gray kept struggling because he could not breathe. Speaking to CTV News outside the hearing, Donaldson said: “If you are desperate for air, if you’re choking, if you are, in effect, dying from lack of oxygen, you cannot stop struggling. It’s not physically possible to stop.” Gray went into medical distress again and died in the yard.

Spencer also testified about why he did not make contemporaneous notes after Gray’s death. He said that at a meeting that evening on the seventh floor of VPD’s Cambie Street headquarters, Vancouver Police Union representatives told him not to take notes until they instructed him to. Several union representatives were present, he said, but he could not remember which one gave the direction. Spencer said the involvement of the Independent Investigations Office, B.C.’s police watchdog, influenced his decision to follow the union’s instructions.

“I thought it was odd, but it did make sense to me at the time,” Spencer said. “Just given me being a police officer and possible criminal charges being on the table, providing any sort of statement without talking to legal advice… made sense to me.” Donaldson disagreed, pointing out that Spencer and the other officers involved had a legal obligation to make notes in a timely manner. He said Vancouver Police Department regulations and policies were clear that notes should be taken, and that Supreme Court of Canada jurisprudence predating the incident clearly established officers’ obligation to keep notes.

Spencer testified that he eventually wrote down his recollections, but only after a union representative told him to do so. He said this happened in December 2015 or January 2016, four or five months after the fatal incident. Hearing counsel Brick Martland will cross-examine Spencer when the hearing resumes in November.

The initial 911 call that brought police into contact with Gray on the day he died concerned a man who had sprayed a woman with a garden hose in South Vancouver. Gray’s family said he had walked away from his work vehicle at a nearby business and was in mental health distress. Const. Hardeep Sahota was the first officer to locate him. She called for backup, saying Gray was aggressive and wanted to fight. Const. Eric Birzneck and his partner, Const. Kory Folkestad, were the next to arrive; that was when the confrontation became physical.

Only Birzneck and Spencer have testified so far. Const. Josh Wong and Const. Nick Thompson are also scheduled to testify. Sahota, Folkestad and Cain are not on the current witness list.

The Office of the Police Complaints Commissioner called the hearing to determine whether the seven officers used unnecessary physical force in their altercation with the unarmed Gray, and whether six of the seven officers’ failure to take notes constitutes misconduct under the Police Act. At the conclusion, if adjudicator Elizabeth Arnold-Bailey finds that the officers committed misconduct, she could impose a range of penalties, including dismissal from the force.