6 constables may also have neglected duty by failing to take notes in 2015 encounter, investigation finds

Seven Vancouver police officers may have abused their authority by using unnecessary force on Myles Gray during the encounter that ended his life, and they could face discipline as severe as losing their jobs if those allegations are proven, the police chief in charge of an investigation into their conduct has found.

Metro Vancouver Transit Police Chief David Jones also determined that six of those officers may have neglected their duty by failing to take any written notes about what happened to Gray on Aug. 13, 2015, according to an executive summary of Jones’s findings obtained by CBC News.

The summary, dated Feb. 13, 2023, is addressed to the Office of the Police Complaint Commissioner (OPCC), which is overseeing the investigation and Chief Adam Palmer of the Vancouver Police Department (VPD).

Jones writes that his findings at this stage of the process should not be considered conclusive. A discipline hearing for the seven officers has been set and is expected to begin in early April, according to a Transit Police spokesperson.

That hearing will not be open to the public.

The executive summary says “there does appear to be sufficient evidence that would support a finding that the abuse of authority ‘may’ be substantiated” under the Police Act in relation to seven VPD constables accused of “intentionally or recklessly using unnecessary force.”

If that finding is confirmed, Jones writes, the recommended discipline would fall within a range “up to and including dismissal from the Vancouver Police Department.”

On the neglect of duty allegations, Jones recommends potential discipline that could include suspension from duty without pay for 30 days.

All allegations against another two officers who were on the scene when Gray died were found to be unsubstantiated, according to Jones.

Gray’s mother, Margie, cautiously welcomed the news of potential discipline.

“Knowing that people are stepping up and recognizing the wrongdoing, at least it’s something,” she told CBC.

She said Jones’s recommendations are an improvement over those of the B.C. Prosecution Service, which declined to approve any criminal charges against the officers.

“Crown failed justice miserably,” she said.

Jones was not available for comment.

Deputy Police Complaint Commissioner Andrea Spindler declined to comment on the proceedings, citing confidentiality provisions in the Police Act. However, she noted that once a disciplinary process is complete, the OPCC may order a review of the decision by a retired judge.

VPD spokesperson Const. Tania Visintin told CBC in an email that the department is aware of the findings and will await the outcome of the OPCC process before commenting.

Officers told investigators Gray resisted arrest

Nine VPD officers are the only surviving witnesses to the end of Gray’s life in a Burnaby, B.C., backyard.

The 33-year-old was making a delivery for his Sechelt-based florist business when police were called after he confronted a South Vancouver homeowner for watering her lawn during an extended drought in the summer of 2015.

Officers restrained Gray’s arms and legs, punched, kicked and kneed him, pepper-sprayed him and struck him with a baton, according to a report from the B.C. Prosecution Service.

Despite an extensive list of injuries — including a fractured voice box, several broken bones and a ruptured testicle — forensic experts have never been able to pinpoint a cause of death.

The Independent Investigations Office investigated Gray’s death and forwarded a report to Crown in the belief the officers may have committed a crime.

But in December 2020, the B.C. Prosecution Service announced that none of the officers would be criminally charged, in part because of the lack of witnesses and uncertainty surrounding the cause of death.

That decision not to lay charges led to the reopening of the Police Act investigation overseen by the OPCC.

The investigation was conducted by a sergeant with the Richmond RCMP, who interviewed all of the officers on the scene.

Jones’s executive summary includes some details from those interviews, including allegations that Gray was intoxicated and aggressive when the first officer arrived on the scene and that she feared for her safety.

When additional officers were called in as backup, they told investigators that Gray was shirtless, sweaty and yelling, and they believed he was challenging them to a fight. They allege he charged at them with his head lowered and resisted all of their attempts to arrest him.

One officer told investigators that Gray threw him to the ground and knocked him unconscious by punching him.

According to Crown prosecutors, any injuries suffered by the VPD officers were minor.

Medical records cited in a report from the B.C. Prosecution Service show that one constable was punched in the face during the arrest and was left with a small cut under his chin, and a second had a five-centimetre cut on his forehead from a low-hanging tree branch.

Gray’s death will also be the subject of a coroner’s inquest scheduled to begin next month.