The Death of John Joseph Harper

The Aboriginal Justice Implementation Commission


Chapter 4

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The Approach
The Power of Arrest
Cross’ Account of the Shooting


The Shooting TOP

It is difficult to piece together the facts of the fateful encounter between J.J. Harper and Const. Robert Cross. Only Cross survived that encounter and we have only his account of the struggle which culminated in the death of Harper. In this chapter we will examine the substance of that account as well as the testimony of others in an attempt to determine the basis on which Cross approached Harper and to assess the implications of their encounter. TOP


The Approach TOP

As J.J. Harper walked toward home on the morning of March 9, 1988, we believe that the first officer to see him was Const. Grant Eakin. Eakin testified that he had observed a man walking on Logan Avenue between the railroad tracks and Electa Street when he drove down the street a minute or two after Const. Randy Hampton flushed Melvin Pruden from hiding. In his supplemental report, dated March 17, Eakin stated that Harper’s body and the person he saw on Logan were dressed identically. We believe Hampton also must have seen Harper. However, Hampton testified before us that he could not remember whether he saw anyone on Logan.

At approximately 2:38 a.m., while Cross was still in the back lane, he heard by radio that the suspect, who was being chased, had been arrested. He then moved from the lane to Logan Avenue and crossed the street. He confronted Harper on Logan adjacent to Stanley Knowles Park. Within two minutes (at 2:40) Harper had been shot, and Cross radioed for his partner and an ambulance.

It is clear from all the evidence that he did not confront Harper until after Pruden had been arrested. Cross’ evidence was that within a minute of hearing of Pruden’s arrest he confronted Harper.

It was obvious that Harper didn’t fit major elements of the description of the suspect. Cross and Hodgins described the man whom they had seen fleeing from the stolen car as a "native male, 22 years of age, wearing dark clothing." Harper was a native male wearing dark clothing, but he was 37 years of age, considerably heavier than Pruden and of much stockier build. Pruden had outrun the police, while Harper was walking and apparently not breathing heavily.

Cross testified that he did not have his revolver drawn and that his radio was in his belt when he approached Harper.

This description of their encounter comes from his statement to police:

I approached him by angling north west across Logan Avenue intersepting [sic] him on the north sidewalk of Logan between Winks and Blaine Street. I stopped him and asked him, "Sir, can you show me some identification." He replys, [sic] "No I don’t have to show you any." At this time I could smell liquor on his breath and he seemed belligerent so I advised him, "You match the description of a suspect I’m looking for, for the theft of auto and I would like to see some identification." He stated "I don’t have to show you nothing," and started walking east on the sidewalk. (Exhibit 23)

In his testimony before us Cross was asked:

Q As Mr. Harper started to walk away from you, did you in your opinion at that point, have reasonable and probable grounds to effect his arrest?

A At that point, I had reasonable and probable grounds to believe that he was a strong candidate or a suspect in this theft of auto, and that I had the right to gain information, meaning identification, from him. (p. 1444)

Cross said his suspicion was heightened when Harper turned away:

Q After you did that and had the conversation with him, which you say you did, and he proceeded to walk away from you, had you decided at that point that he was any more suspicious?

A Yes, I did.

Q Why?

A Because he was being uncooperative and he was trying to get away.

Q You say he was being uncooperative and trying to get away. By uncooperative, I take it you’re referring to his belligerence and his failure to show you identification?

A I believe I treated him with respect. I explained the situation, and given those circumstances, the lateness of the hour, no one being around, that I do not feel that he would have felt threatened by just producing some identification.

Q Well, as a result of his conduct and his demeanour, as he commenced to walk away from you, did you decide that you had reasonable and probable grounds to effect his arrest?

A I did not make that decision at that point. What I did at that point was I reached out and took hold of his right arm I believe, to turn him and try and talk to him some more. I just wanted to try and reason with him to explain in more detail as to why I wanted to see some identification. I–the last thing I wanted was a struggle and what happened, I mean I didn’t want that.

Q You did not arrest him that evening?

A No.

Q And at no point in the encounter between you and he was he under arrest?

A No. (p. 1445—46)

Cross later testified that he had very little reason to view Harper as a suspect:

Q [Y]ou had some suspicion that maybe the police had the wrong fellow and this fellow could conceivably be the right fellow?

A That’s right.

A But you would agree with me it wasn’t anything more than some slight

A That’s correct.

Q Not anything close to anything like reasonable and probable grounds to arrest a person?

A Not at that point, no. (p. 1483)

The manner of Cross’ approach to Harper provides further indication that he did not consider Harper a likely suspect.

Staff Sgt. Menno Zacharias, the departmental training officer, testified that the way Cross approached Harper was contrary to basic training. Zacharias testified, "There were certainly problems with it, no doubt." Cross’ stance and the fact he had his holster side to Harper indicates that Cross did not approach Harper as a suspect. Cross did almost everything a constable is told not to do.

Zacharias testified about the instruction officers receive as to when it is permissible to stop and check someone on the street. Zacharias said that, in training, officers spend about 22 hours on powers of arrest. The instructional material is reviewed by Crown attorneys to ensure that it remains current.

Zacharias told us that only in two situations can officers confront citizens on the street: when an officer intends to make an arrest, or when an officer wants to talk to or question a citizen. He stated:

[I]t’s going to be a very conversational thing. You’re going to be polite ... and saying what it is that you want, why you want it and try to determine whether in fact the person is legitimately at that location or whether he may be in fact involved in criminal activity.... (p. 2672)

Officers are taught to ask for identification as Cross did. Zacharias stated that obtaining a name gives the officer a chance to check the person out. However, he said, officers are instructed that they cannot just stop people on the street at random. It would seem that there is little wrong with the training given. What was deficient was Cross’ implementation of what he had been trained to do.

Cross, we believe, got caught up in the excitement of the chase. We believe that he decided to stop and question Harper simply because Harper was a male Aboriginal person in his path. We are unable to find any other reasonable explanation for his being stopped. We do not accept Cross’ explanation. It was clearly a retroactive attempt to justify stopping Harper. We believe that Cross had no basis to connect him to any crime in the area and that his refusal or unwillingness to permit Harper to pass freely was, for reasons which we discuss later, racially motivated.

As disclosed by the facts, Cross had neither reasonable nor probable grounds to believe that Harper was the suspect the police were after. He had been informed that the person chased from the very lane he had been watching had been apprehended, and he had no reason to believe that his fellow officers were mistaken. If Cross had doubts or suspicions about the suspect in custody, he erred in not seeking further information by radio from those who had arrested Pruden. Harper was walking, not running, and it is highly unlikely that he would have gone far had Cross decided to radio quickly for further information. Also, according to Cross’ own account of the incident, Harper was not behaving or walking in a suspicious manner. It would appear, then, that Harper simply had the misfortune of being an Aboriginal man in dark clothing, in that area late at night. In our opinion, Cross exercised poor judgment in pursuing the matter forcibly, as he did after Harper legitimately had refused to identify himself. TOP


The Power of Arrest TOP

Although we conclude that Cross had no reason to believe that Harper was the suspect who was being sought, it is useful to review the law concerning police officers’ power to approach citizens.

Under common law, a police officer’s general duties are to prevent crime, to protect life and property, and to preserve the peace. While these duties are wide in scope, the powers with which an officer legitimately may carry them out are not unlimited. Just as there are necessary legal limits placed on the freedoms of citizens, so too there are limits placed on the powers of police officers. As Supreme Court Chief Justice Brian Dickson observed, "[The] fact that a police officer has a general duty to prevent crime and protect life and property does not mean that he or she can use any or all means for achieving these ends...."1 Put differently, a police officer can interfere with the liberty or property of a citizen only if he or she is legally authorized or justified in doing so.

Under common law and within the general scope of police duties, police officers conducting an investigation have the right to ask questions of citizens and to request they identify themselves. Officers do not, however, have the power to force citizens to comply.

In an encounter between an officer and a citizen, the officer legitimately may exercise his or her right to ask questions and request identification, and generally the citizen will comply, but also legitimately may exercise his or her right to refuse to do so. Up to this point, both are within their respective legal rights and powers. But, if an officer does not place the citizen under arrest, or if the officer is not making a lawful detention and has no intention of doing so, the officer exceeds his or her authority by grabbing and detaining the citizen forcibly. While the use of force to detain individuals falls within the general scope of a police officer’s rights, an officer’s actions may amount to an unjustifiable use of police power if he or she uses force without making a lawful arrest or detention. Beyond those parameters the officer’s use of force is not authorized or justified.

The courts have held that unless a person is placed under arrest or is under a statutory duty to comply (as in the case of a person operating a motor vehicle), producing identification and answering police inquiries is strictly a moral or social obligation.2

Section 7 of the Canadian Charter of Rights and Freedoms [Part I, Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)] provides that:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Section 9 of the Charter provides that: "Everyone has the right not to be arbitrarily detained or imprisoned."

This Charter right is augmented by the Criminal Code, which provides that an arrest can be made only if the police officer is empowered to do so by a warrant, or if the officer has reasonable and probable grounds for making the arrest, or if the officer finds the person breaking the law. Section 495(1) states:

A peace officer may arrest without warrant:

(a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence,

(b) a person whom he finds committing a criminal offence, or

(c) a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal in any form set out in Part XXVIII in relation thereto, is in force within the territorial jurisdiction in which the person is found.

In addition to the requirement for reasonable and probable grounds, the police officer also must have a reasonable and honest belief in the existence and basis of such grounds.3 Unless these requirements are met, the arrest is arbitrary and, therefore, unconstitutional.

Under section 25 of the Criminal Code, a police officer is authorized and justified in using as much force as is necessary in enforcing and upholding the law. Section 25(1)(b) provides:

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 or public 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.

If a police officer is acting legitimately within the scope of his or her duties, not only is the officer justified in doing what he or she is authorized to do, but the officer also is justified in using as much force as is necessary for that purpose. But in order for section 25 to protect a police officer’s conduct, the police officer must have reasonable grounds for what he or she is doing and the police officer also must refrain from using more force than is reasonably necessary. Unless these two requirements are met, a police officer’s conduct is not protected by this section.

The purpose of section 25 is to protect, not to empower. It is meant to be a shield rather than a sword, and it in no way alters or modifies police powers. As long as a police officer acts within the authority of the law, section 25 will protect him or her. The minute the police officer steps outside this authority, this section’s protection disappears. An officer is not acting within the authority of the law when he or she forcibly grabs and detains a citizen whom he or she has no intention to arrest or detain.

Courts have had difficulty in defining and separating the concepts of arrest and detention. These difficulties have been compounded by a lack of clear and unambiguous legislation dealing with the nature and the powers of arrest. As a result, courts often have been called upon to balance the civil rights of the individual and the necessary powers of the police.

The moment of arrest is crucial, because it is at that moment that the legal relations of the individual and the state may conflict. At the moment of a lawful arrest, an individual loses his or her right to resist what otherwise might be an unlawful assault, and the person moves from a state of liberty to one of lawful detention.

According to the Supreme Court of Canada, an arrest is defined as the actual "seizure or touching of a person’s body with the view to [his or her] detention."4 While the law recognizes a police officer’s power to ask questions without making an arrest or detention, it also recognizes a citizen’s right to ignore these questions and walk away. If that occurs the police officer is faced with a dilemma: the officer either must let the citizen proceed on his or her way unharassed, or the officer must make an arrest or find some other lawful power to detain the individual if he or she wishes to have the questions answered.

Unless the police officer has reasonable and probable grounds for believing that the individual has committed an indictable offence, an arrest might be unlawful. Furthermore, unless the police officer is authorized under statute or common law to detain the individual, any detention made might similarly be unlawful.

Staff Sergeant Zacharias testified that officers are instructed that if a person won’t give his or her name and simply walks away, to "abide by that decision." He stated that, "I know of no circumstances in which an officer can then grab a citizen." Officers cannot grab onto someone if that person is not going to be arrested and officers are taught this.

If an arrest is made improperly it may be unlawful, and the police officer might not be acting within the scope of his or her duty. In such a situation, a police officer would not be protected in the use of force.

If police officers use force in the course of arresting or detaining an individual, their actions could amount to an assault which can be prosecuted in a court of law if they do not have legal justification.

Furthermore, such an assault may be resisted by virtue of s. 34(1) of the Criminal Code5 which provides:

Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.

In other words, citizens have the right to resist an unlawful arrest, and the right to protect themselves against any unlawful arrest or the unlawful use of force. TOP


Cross’ Account of the Shooting TOP

We must examine in some detail Cross’ account of his encounter with Harper and the manner in which that account was recorded by other officers at the scene.

When Harper declined to show him identification and turned to walk away, Cross attempted to prevent him from leaving. Cross told us that he did not have time to consider alternatives such as checking with other officers to see if they arrested the right person or even calling for assistance. Instead, he reached out and took hold of Harper’s right arm. In the statement he gave to Sgt. Williams he described his actions:

He had only made a step or so when I reached out and took hold of his right upper arm with my right hand and he turned to face me, so I reached out with my left hand taking hold of his right wrist.

The suspect leaned forward pushing me with both hands on the front of my shoulders.... I was off balance and fell backwards.... (Exhibit 23)

Cross testified at the Inquiry that Harper:

... partially turned, spun quickly and pushed.... He turned quickly, caught me off guard, pushed with both hands on my upper shoulders. I went down. I was trying to grab hold of his jacket, grab hold of him, grab hold of anything to break my fall. I remember lashing out with my left hand and knocking off his glasses. I believe I had hold of both sleeves of his, you know upper jacket. (p. 1449)

Cross said that after they were on the ground, he put his left foot on Harper’s chest to kick him off when, he said, he felt a tugging in the area of his holster.

In his statement to the investigators Cross stated:

I placed my foot in the centre of his chest attempting to push him back. He grabbed a hold of the butt and holster of my revolver pulling it forward. I reached down and took hold of the butt of my revolver pulling it backward. He took hold of my right hand which the gun was in and started to yank at the gun. The snap came undone on the gun holster and he yanked at the gun so that it was between us. I had grabbed a hold–so I had the butt of the revolver and my trigger finger was hooked through the trigger guard I guess on the trigger. I don’t know exactly where our hands were but I was pulling with both hands on the butt of the revolver while he was yanking at my hands and the barrel of the revolver with the muzzle pointed at his chest.

The snap came undone and the revolver came out. He had both hands on the gun and I had my right hand on the frame and my left index finger on the trigger. (Exhibit 23) [Our emphasis]

At the Inquiry Cross testified:

The gun came out, we fumbled for it. I remember having my hand around the cylinder, he had his hand I believe on the butt and the barrel of the revolver. I managed to get a finger in the trigger, around the trigger guard and on the trigger.

Through the pulling and yanking, the gun discharged. (p. 1450)

The first officers to arrive were Const. Danny Smyth and his partner, Const. Douglas Hooper. Smyth and Hooper, whose evidence we accept on this point, stated that Cross acknowledged pulling the trigger, and they testified that Cross said, "He went for my gun and I shot him."

Const. Grant Eakin, who arrived shortly thereafter, testified Cross’ first words were, "I approached him, asked him for I.D. and he hit me, knocked me down and went for my gun, it came out and he got shot."

Eakin stated in his special report to the Chief of March 9, 1988:

I spoke with Cst Cross at this time, and he stated to me that this male fit the description of the accused and he went to spot-check him. At this time the male swung at him and a struggle ensued, at which time the male attempted to grab his gun, and on struggling the gun came out and the male was shot. (Exhibit 80) [Our emphasis]

Eakin could not explain to us how he could add those statements we have italicized when they were not in his notes, most of which he said he wrote at the scene.

Const. Richard Poneira reiterated this version when he testified that he heard Cross tell Eakin that he went to check a male who attacked him, got him down, went for his gun, and the gun came out and went off. Poneira told us he didn’t write this in his notes as he couldn’t recall the comments verbatim, even though he made his notes shortly after speaking with Cross. He did not include what he heard in his special or supplementary reports. Poneira observed Cross with his revolver in his right hand and saw him put it in his holster as they arrived.

Cross explained to Kathryn Hodgins what happened when he returned to their patrol car. According to her testimony at the Inquiry, Cross said, "He jumped me, Kath. I was on my back on the ground. He went for my gun."

At the inquest Allan, the youth, testified that he overheard Cross in conversation with Hodgins:

[W]hen he took his glasses off he says, he said,"oh my God." He goes "you [sic] shouldn’t have fought," ... I remember he says, all I remember these parts, words like, "I happen to reach for my gun," and then he said "I pulled the trigger," and then they went off, and then there’s this another male cop that pulled up beside us, an older one. He got out of the cop car and they started talking, and the older cop’s, like, after you open the door like I heard them say, "you just say that," and then the other one said, "I will say that." (p. 237—38) [Our emphasis]

The youth also testified that someone at the scene had told Cross to say the gun went off accidentally.

Const. Glen Spryszak said he made some brief notes but did not quote Cross verbatim and may have missed some facts. He paraphrased Cross: "Smacked me. Went for my gun. Went off." In his special report to the Chief he stated that Cross "indicated to me that he tried to spot check the male." Spryszak could not recall whether Cross or Eakin had told him this detail. He said, "There was no mention made of whether it [the gun] was drawn or not."

Insp. Eric Hrycyk told us that he spoke to Cross and Hodgins together, and that Cross related the sequence of events:

Constable Cross told me he grabbed the right arm and the fight began. Immediately upon grabbing Harper’s right arm, Cross held on and winds up on his back with his foot against Harper’s chest, his left foot. The male, again referring to Harper, grabs the gun and so does Cross, and it winds up with Cross’ two hands on the butt of the revolver after a fight for the revolver, and the male with the rest. As the gun began to slip away from Cross, it goes off. The male has been shot and Cross calls for the ambulance. (p. 2174)

Hrycyk indicated this was not a verbatim quote but, rather, notes he made on the essence of the conversation, notes probably made at the scene or in his vehicle afterwards. At the inquest Hrycyk testified, "He [Cross] told me that he [Cross] grabbed Harper by the right arm and before he knew it he was on his back." Cross told Hrycyk that Harper pushed him. TOP


Conclusions TOP

While it is difficult for us to determine exactly what happened when Cross and Harper met, how they came to be on the ground or how Harper came to be shot, we are able to reach some conclusions. Most of our conclusions are based on statements uttered by Cross at one time or another. Even if we cannot say exactly what happened, we can say, with some assurance, that the confrontation did not occur in the manner which was accepted as fact by the Firearms Board of Enquiry, the police chief and Judge Enns at the inquest.

Cross said he thought Harper was a suspicious person worth questioning and investigating, but not sufficiently suspicious to arrest. Although Cross knew that a suspect already had been apprehended and although he knew that Harper did not fit completely the description of the suspect which he and Hodgins had broadcast, he nevertheless stopped him and asked to see identification. Harper declined and began to walk away. Harper had no legal obligation to provide any information to Cross. Unless Cross had reasonable and probable grounds to believe that Harper had committed an indictable offence, he had no power to arrest or detain him.

Since Cross had neither reasonable nor probable grounds to believe that Harper had committed an offence, Cross’ detention of Harper was inappropriate.

During his testimony, Cross initially suggested that Harper had jumped him or hit him and knocked him to the ground. As his testimony continued, we learned that it was Cross who had grabbed hold of Harper. Even though Harper shoved Cross, it was Cross who pulled Harper down on top of him. This sequence of events contradicted not only what Cross had said earlier but many of the statements made by Cross to other police officers.

It is impossible to know with certainty exactly what happened after the men landed on the ground. We do not know how Cross’ gun came out of its holster or how it came to be fired. All the evidence given by Cross suggested that when he approached Harper in the street, his gun was not drawn and that he did not draw it voluntarily, but that it was removed from the holster through the efforts of Harper. As well, he suggested that he did not pull the trigger voluntarily and shoot Harper but, rather, that the gun discharged accidentally.

Cross acknowledged having had his finger on the trigger and having pulled it. We also know that Cross had hold of the revolver during the entire scuffle. It would be reasonable to conclude that if Harper did have any control over the revolver at such a close range, he would not have allowed it to be pointed at him, let alone be fired. We conclude that Harper never had any significant degree of control over Cross’ revolver.

Cross’ first remark after the shooting–"He went for my gun and I shot him"–was not given sufficient consideration in the investigation that followed. Instead, the effort to protect Cross and to shift the blame to Harper took precedence. This effort precluded any objective determination of the facts. We believe that officers collaborated in preparing their notes, that at least one set of notes was rewritten completely, and that Cross was assisted over a lengthy period of time in preparing his written statement, all of which causes us great concern. We also are troubled that one officer would advise another to "say the gun went off accidentally." We have been left with the impression that an "official version" of what happened was developed. We are satisfied that version is inaccurate.

Unfortunately, we are not able to report on exactly what did happen at each stage of the confrontation. We can, however, conclude that it was Cross, through his unnecessary approach and inappropriate attempt to detain Harper, who set in motion the chain of events which resulted in Harper’s death. TOP


1 Dedman v. The Queen, [1985] 2 S.C. R. 2, p. 12
2 R. v. Moore (1979), 43 C.C.C.(2d) 833 (S.C.C); R. v. Guthrie ( 1982), 69 C.C.C. (2d) 216 ( Alta. C.A.).
3 R v. Duguay (1989), 46 C.C.C.(3d) 1 (S.C.C.)
4 R. v. Whitfield [1970] 1 C.C.C. 129 (S.C.C).
5 R. v. Biron (1975), 23 C.C.C. (2d) 513; R. v. O’Donnelly; R. v. Cluett (1982) 3 C.C.C. (3d) 333 (N.S.S.C). (The decision with respect to Cluett was reversed by the S.C.C. on other grounds in Cluett v. The Queen (1985) 21 C.C.C. (3d) 318.)

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