A Victoria police officer who did not document his actions in a fatal shooting did everything the department expected of him, a senior officer said Friday.
Sgt. Ron Kirkwood’s actions in relation to the death of 43-year-old Lisa Rauch on Christmas Day 2019 are being scrutinized in a public hearing held by the Office of the Police Complaint Commissioner.
Kirkwood faces two allegations of misconduct under the Police Act: abuse of authority in relation to firing an ARWEN gun at Rauch, and neglect of duty in connection with his lack of documentation of the fatal shooting. The ARWEN fires projectiles that are meant to be “less lethal” than bullets.
Retired judge and former attorney general Wally Oppal is presiding over the hearing to determine if the misconduct allegations are substantiated and if any disciplinary action is appropriate.
In relation to the lack of documentation, Oppal must determine if Kirkwood failed to complete the documentation required by VicPD for incidents where the member uses force on a person resulting in serious bodily harm or death.
Officers have a duty to make notes in a timely manner to document incidents they respond to. The notes can be used in court proceedings.
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 VicPD officer who fatally shot a man in 2014 also did not make notes on the incident. That case went through investigations by the Independent Investigations Office of B.C. and the Office of the Police Complaint Commissioner, as well as a coroners inquest, and there was never a suggestion the officer should have taken notes, said Insp. Colin Brown, VicPD’s head of executive services division, who is also a lawyer. In his role, Brown deals with issues related to the Police Act.
“The understanding was that if you’re involved in a situation where you kill someone in the line of duty, you’re going to be subject to a criminal investigation, and you have Charter rights against self-incrimination and the right to silence,” Brown testified. “That was my understanding at the time, and I felt that was the understanding of the province at the time as well.”
Brown said he was “flabbergasted” when he received a call in 2021 from the Office of the Police Complaint Commissioner raising the issue of a lack of notes by Kirkwood.
Brown said he doesn’t think the law is definitive on the duties of an on-duty officer who kills someone.
“I think you can bring a lot of very smart people and a lot of very smart lawyers into the room, and not everyone will agree,” he said.
Kirkwood followed the department’s policies and expectations, Brown said.
“If there was a misstep, in my opinion, it’s an organizational misstep. It is not a misstep of the officer,” he said.
On cross-examination, Brown said the department’s understanding was that the policy requiring officers to take notes did not apply when officers used lethal force.
“But the written policy of the police board doesn’t make that distinction. It’s a distinction that you’ve made within the department in the way you practise,” said Chris Considine, counsel to the police complaint commissioner.
“I don’t think the policy is clear, if I’m being honest. I think we have work to do to make a better policy,” Brown replied.
In 2021, when another VicPD officer fatally shot someone, the officer was instructed to make notes on the incident before speaking to a lawyer, he said. The notes were then protected so they didn’t become part of a criminal investigation to protect the officer’s right against self-incrimination, Brown said.
The department’s policy was formally updated in 2024 to reflect the practice, Brown said.
The public hearing continues Wednesday.
