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Officer's decision to use force can't be held to 'standard of perfection:' lawyer

VicPD officer Ron Kirkwood faces allegations of abuse of authority after 43-year-old Lisa Rauch was killed by a plastic projectile from an ARWEN gun
Lisa Rauch died in December 2019 after being shot in the head with an ARWEN weapon by Victoria police. FAMILY PHOTO

Police officers cannot be held to a “standard of perfection” when their decisions to use force are judged, a lawyer representing a Victoria police officer who killed a woman on Christmas Day in 2019 told a public hearing Wednesday.

Officer Ron Kirkwood faces allegations of abuse of authority in firing an ARWEN gun at 43-year-old Lisa Rauch and neglect of duty in connection with his lack of documentation of the fatal shooting.

Kirkwood has been cleared of criminal wrongdoing by the province’s police watchdog. Allegations of misconduct under the Police Act are being heard in a public hearing held by the Office of the Police Complaint Commissioner at the request of Rauch’s family.

In closing submissions Wednesday on the use of force, Kevin Woodall, counsel for Kirkwood, said Kirkwood did not commit professional misconduct when he decided to shoot Rauch with the ARWEN, a “less lethal” weapon that is used to inflict pain to subdue a person.

The public hearing has heard family statements saying Rauch was a beloved daughter, mother and sister, but officers can only respond to the behaviour in front of them, Woodall said.

“Police officers cannot respond to the person who they may be in their heart,” Woodall said. “Behaviour and behaviour alone is what police have to respond to.”

On Dec. 25, 2019, officers were called to a supportive housing facility on Pandora Avenue after Rauch, who had been drinking and using crystal methamphetamine, barricaded herself in someone’s unit and threatened the tenant with a knife. She was alone in the unit when police arrived.

Officers had dealt with Rauch the previous evening in a nearby building, eventually taking her to police cells overnight. She had been combative with officers and had threatened to slit the throats of officers trying to arrest her, officers previously testified in the public hearing.

Officers have testified they initially tried to contain Rauch in the unit and coax her into the hallway, where they could take her into custody with less risk than entering the unit.

But when smoke was seen coming out of the unit’s window, they decided Rauch needed to be removed from the room quickly to allow firefighters in to extinguish the fire.

The third floor of the building had been evacuated but other units remained occupied and officers believed evacuation would take too long, given the marginalized population in the building.

Greater Victoria Emergency Response Team members did not have the training or equipment to deal with the fire and firefighters did not have the training to enter a suite where a person was reported to be armed, Woodall said.

Several officers and experts testified that Kirkwood was “facing a situation that was among the most challenging of an officer’s career,” he said, adding Rauch was in a “drug-induced psychotic state.”

Allowance must be made for officers facing complex situation to misjudge the degree of force necessary, said Woodall. He argued there is no obligation for officers to impose the least amount of force to achieve their objective. It is often necessary for officers to take control of a situation as quickly as possible to prevent escalation, he said. “An officer cannot be held to a standard of perfection, which one, sitting in the calmness of a courtroom, might later determine to be the best course,” he said.

Experts on use of force told the public hearing that Kirkwood’s decision to fire the ARWEN into a smoky room was reasonable and consistent with policies guiding use of force.

“If you apply that expert evidence, you will find that Sgt. Kirkwood committed no misconduct,” Woodall said.

Closing submissions will be made in September to address allegations about a lack of note-taking about the shooting.

Lawyers will also make recommendations arising from the death.

Adjudicator Wally Oppal, a retired judge and former B.C. attorney general, is presiding over the hearing to determine if Kirkwood committed misconduct under the Police Act in connection with Rauch’s death.

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