A Victoria police officer committed misconduct when he fired a “less lethal” weapon into a smoke-filled room, fatally injuring a woman on Christmas Day 2019, a retired judge ruled Friday.
The actions of Sgt. Ron Kirkwood, who had been in the shooting of 43-year-old Lisa Rauch, were the subject of a public hearing held by the Office of the Police Complaint Commissioner over 16 days between April and September 2024.
Wally Oppal, a retired judge and former B.C. attorney general, presided over the hearing to determine whether Kirkwood committed misconduct under the Police Act.
Oppal found that Kirkwood should not have fired an ARWEN, which fires plastic projectiles, at Rauch when his vision was obscured by thick smoke.
Oppal said he accepted that Kirkwood believed he was targeting Rauch’s torso, but the visibility was “so obscured” that it was impossible to draw any reliable conclusion on the position of her body. “His conclusion in this regard was objectively unreasonable,” he said.
The situation did not present an imminent risk of death or grievous bodily harm to police or anyone else that would have justified lethal force, he said.
Oppal acknowledged the stress and confusion of the situation, but determined Kirkwood should have recognized three ARWEN rounds presented an “unnecessary and unjustified risk” in the circumstances, calling it “reckless and unnecessary.”
Oppal said Kirkwood should have weighed Rauch’s distance from officers before firing. Officers testified in the public hearing they feared Rauch was in a loft above them and could come down stairs that would bring her in close proximity to them.
Her actual location about 15 feet in front of officers “presented a materially less risky scenario,” Oppal said.
He noted that while he accepted firefighters’ testimony that the fire was out before Kirkwood fired the ARWEN, it may have been extinguished only a few seconds before the first shot and Kirkwood may not have realized the fire was no longer a threat.
Oppal said that he accepts Kirkwood did not intend to kill Rauch and his remorse is genuine.
Kirkwood had also faced allegations he neglected his duty by failing to document his actions, but Oppal found the allegation related to his note-taking unsubstantiated.
Oppal found Kirkwood “had good and sufficient cause” for his failure to complete the documentation required by VicPD for incidents where the member uses force on a person resulting in serious bodily harm or death.
Based on advice from a lawyer to exercise his Charter right to silence, Kirkwood did not make any notes on the shooting. Instead, he dictated a brief statement, known as a police “will-say,” to another officer.
The will-say is four bullet points and includes the date and address of the shooting, the fact that Kirkwood was a member of the Greater Victoria Emergency Response Team and that he fired three ARWEN rounds.
A senior officer testified Kirkwood did everything the department expected of him, calling it an “operational misstep,” if it is considered a misstep. The department formally updated its note-taking policy last year.
Kirkwood fired three projectiles into a smoky room of a Pandora Avenue supportive housing facility where Rauch had locked herself inside on Dec. 25, 2019. She was hit in the back of the head with at least one plastic projectile from the ARWEN. Rauch died four days later in hospital from blunt-force head injuries after being removed from life support.
Training for the ARWEN dictates that the 78-gram baton projectiles are not to be aimed at the head, clavicle or neck unless the officer intends to use the weapon as lethal force and that officers must have a clear line of sight to ensure they don’t hit a vulnerable part of the body, the public hearing heard.
Kirkwood was cleared of criminal wrongdoing by the Independent Investigations Office of B.C. in 2020 and an investigation by the 麻豆传媒映画Police Department found the Police Act misconduct allegations unsubstantiated.
The OPCC called for a public hearing in response to a request by Rauch’s family, determining it in the public interest.
Officers were responding that day to a report that Rauch had locked herself inside someone else’s unit after consuming alcohol and crystal methamphetamine, and had threatened the tenant with a knife.
The urgency of the situation escalated when officers noticed smoke coming from the unit’s window and the building’s fire alarm went off. Officers determined the fire posed a danger to other residents, many of whom had not been evacuated, and they needed to immediately remove Rauch to allow firefighters to extinguish the fire.
Officers involved in the incident testified visibility in the room was extremely limited due to the smoke.
Kirkwood in April 2024 he believed he was firing at Rauch’s torso when he saw movement in the room. It was only after he fired three shots and other officers moved into the room that he realized she was seriously injured, he testified.
Kirkwood wiped his face as Oppal gave his decision and left before the hearing concluded.
Oppal is expected to determine the appropriate discipline and recommendations at a future date.
