Canadian law students are reporting for JURIST on national and international developments in and affecting Canada. Mélanie Cantin is JURIST’s Chief Correspondent for Canada and a rising 3L at the University of Ottawa.
On Monday, May 1, the jury for the coroner’s inquest into the 2015 death of 35-year-old British Columbia man Myles Gray during an altercation with the Vancouver Police Department (VPD) officially declared his death a homicide. The finding is long-awaited vindication for the Gray family, who have been stating for almost eight years that their loved one was killed by the VPD.
Gray’s death on August 13, 2015, was the subject of significant media attention in Canada. Already at that time Canadians were aware that serious problems existed within police forces in the US, especially following the killings of Trayvon Martin and Michael Brown and a disproportionate number of other black people at the hands of American police. Gray was white, but his death suggested that Canadian police are not exempt from the many problems that plague their American counterparts, especially a lack of training when it comes to mental health and use of force. While Gray’s story has faded over years of a slow struggle to figure out what truly happened to him, the BC inquest has brought it back to the forefront of the Canadian consciousness.
By way of background, on August 13, 2015, police responded to a 911 call about an agitated man having sprayed someone with a garden hose. A few people in the area of Vancouver’s Boundary Street noticed the individual was walking around in circles barefoot, kneeling on the ground, and talking nonsensically. According to Gray’s family, it is possible that Gray was experiencing a mental health crisis, as he had been diagnosed with bipolar disorder several years prior following an episode of psychosis. Shortly after the first VPD officer responded, she called for backup as Gray was behaving in a “threatening” manner towards her.
Two plain clothes officers arrived at the scene and according to the testimony of one of them, the unarmed Gray “roared” at the officers and clenched his fists in a way that made him think Gray was going to attack. The uniformed officer who initially interacted with Gray and called for backup testified that Gray had not moved towards police. Gray was pepper sprayed by the other plain clothes officer, who stated that “[his] perception was that [Gray] was charging at [him].”
The three officers then attempted to handcuff Gray. It is unclear whether Gray was told he was under arrest at any time. Police allegedly “almost had him” handcuffed when he managed to break free. Gray knocked out an officer with one punch as more backup arrived. Many testified to punching, kicking, kneeing, and striking Gray with batons to subdue him. Some officers claimed he “showed no signs of pain” and was exhibiting “superhuman” strength in line with the so-called condition of excited delirium.
Excited delirium is often invoked in police-involved deaths, perhaps most notably in the 2020 murder of George Floyd by police. Police in Canada are often trained on how to recognize and respond to excited delirium. During the Gray inquest, an officer testified that there was no such thing as de-escalation in cases of excited delirium because those individuals “can’t be reasoned with.”
Excited delirium is not recognized by the American Medical Association, the American Psychiatric Association, or the World Health Organization as a real medical condition, and various Canadian provinces do not recognize it as such either. It is also disproportionately invoked in cases involving mental illness and people of colour. As such, the coroner during the Gray inquest specifically cautioned the jury about excited delirium and the fact that it is not a recognized medical diagnosis.
After Gray was successfully restrained by police, multiple officers knelt on him as he laid facedown and bound at the wrists and ankles, allegedly concerned he could still be dangerous to officers in this state. Officers then noticed he “turned blue” and had lost consciousness, and paramedics were called to the scene. Resuscitation attempts were made for 40 minutes before Gray was officially declared dead.
None of the officers were wearing body cameras at the time, and there were no witnesses (aside from police) to the incident. On instructions from the police union, six of the seven officers did not take notes about the incident, contrary to usual police protocol. Further, two of the three officers who initially responded to the call about Gray did not have any mental health training.
In the aftermath of Gray’s death, the VPD refused to cooperate with the Independent Investigations Office (IIO) despite having an obligation to do so under the province’s Police Act. The IIO is a civilian watchdog that at the time was trying to investigate the suspicious circumstances of Gray’s death. This is what caused significant delay in investigating his case.
Throughout the inquest, it became clear that the VPD and its officers were going to continue their previous lack of forthcomingness. While several officers testified that they saw “minimal” or no injuries to Gray’s face, firefighters and paramedics who later responded to the scene testified to having seen such severe injuries that they initially struggled to identify that Gray was a white man. The forensic autopsy of Gray’s body revealed that he suffered from a fractured voice box, nasal fracture, dislocated jaw, broken orbital eye socket, broken rib, broken sternum, bruising on thighs and arms, and ruptured testicle―injuries so extensive an exact cause of death could not be identified.
The job of the jury during this inquest was not to assign blame to anyone or sanction officers for their behaviour, but merely to categorize Gray’s death as either a natural death, accidental death, suicide, homicide, or undetermined. On a 4-1 basis, the jury selected homicide. From the start, the VPD had maintained that Gray died of natural causes or something to do with intoxication.
While it is important to remember that the coroner’s inquest was in no way a trial or even a determination of fault when it comes to the police officers who responded to the call about Gray that day, its finding could prompt the Crown’s office to reconsider its initial decision not to lay criminal charges. Back in 2020, the Crown’s office had deemed that there was insufficient evidence to lay charges of manslaughter due largely to conflicting evidence from officers and to the fact that they were the only witnesses, but little of the evidence heard by the inquest jury over the course of the past few weeks had surfaced at the time due to the lack of cooperation from the VPD.
Criminal charges would be an important step in sanctioning the conduct of the police in this case, and since there is no limitation period on manslaughter or murder, it is not impossible that charges could be laid in the future, but there is currently no word about this from the crown’s office.
Separate disciplinary proceedings against seven of the involved officers under the provincial Police Act for excessive force and regarding the lack of notetaking contrary to regular protocol were previously set to begin sometime after the inquiry, though there is no specific timeline in place for this. Gray’s family has said that their main concern is to see the officers who killed Myles fired from the VPD.
